REPORTS  OF  CASES 


ARGUED  AND   DETERMINED  Iff  THE 


SUPREME  COURT 


OF 


JUDICATURE 


THE   STATE   OF   NEW  JERSEY. 


BY 

WILLIAM  HALSTED,  JTO.,  EEPOBTEE. 


VOLUME  1 . 


THIRD  EDITION,  WITH  NOTES,  BY  JOHN  LINN,  ESQ. 


JERSEY   CITY: 

FREDERICK  D.  LINN  &  CO. 

1886. 


JUSTICES 


SUPREME  COURT  OF  JUDICATURE 


or  THE 


STATE  OF  NEW  JERSEY, 

A.  D.  1822. 


ANDREW  KIRKPATRICK,  ESQ.,  -  CHIEF  JUSTICE. 

I 

WILLIAM  ROSSELL,  ESQ.,  -    SECOND  JUSTICE. 

GABRIEL  H.  FORD,  ESQ.,        -  -       -        THIRD  JUSTICE. 


ATTORNEY-GENERAL, 

THEODORE  FRELINGHUYSEN,  ESQ. 


LAW   REPORTER, 

WILLIAM  HALSTED,  JUN.,  ESQ. 


CLERK  OF  THE  SUPREME  COURT, 

ZACHARIAH  ROSSELL,  ESQ. 

(m) 


TABLE  OF  CASES. 


PAGE. 

Adams  v.  Executors  of  Rolston...  183 

Algor  v.  Stillwell 166 

Allen  v.  Hickson 409 

Arnold  v.  Mundy 1 

Anonymous,  (Practice) 159 

Anonymous,  (Practice) 166 

Anonymous 230 

Austin  v.  Nelson....,  ..  381 


Bateman  v.  Connor  et  al 104 

Bergen  v.  Clarkson 352 

Berry  v.  Callet 179 

Black  v.  Ely 232 

Board  v.  Cronk 119 

Boqua  v.  Ware 151 

Brooks  v.  Brooks 404 

Brush  v.  Ware 404 

Budd  v.  Crea 370 

Burnet  v.  Bryan 377 

Burroughs  v.  Condit 300 


Campbell  v.  Cooper 142 

Cattel  v.  Warwick 190 

Cavalier  v.  Doughty 227 

Cook  v.  Green 109 

Cowell  v.  Oxford 432 

Crane  v.  Sayre '. 110 

Cumberland  Bank  v.  Hall 215 


Den  ex  dem. 
Den  ex  dem. 
Den  ex  dem. 
Den  ex  dem. 
Den  ex  dem. 
Den  ex  dem. 
Den  ex  dem. 

cott 

Den  ex  dem. 
Den  ex  dem. 
Dickerson  v. 
Dickerson  v. 


v.  Ferin 431 

Jouet  v.  Spinning....  466 

Halsey  v.  Dodd 367 

Lockyer  v.  DeHart..  450 

Maffit  v.  Tonkins 228 

Pancoast  v.  Curtis...  415 
Laurence  v.  Lippen- 

473 

Rossell  v.  Inslee 475 

Nathan  v.  Fen 478 

Robinson 195 

Dill 168 


E 

PAGE. 

Edwards  v.  Davis 394 

Ely  v.  Norton 187 


Fennimore  v.  Childs 386 

Ford  v.  Potts...,  ..  388 


G 


Gibbons  v.  Livingston 236 

Gibbons  v.  Ogden 285 

Gordon  v.  N.  Brunswick  Bank....  100 

Gratz  v.  Wilson 419 

Greenway  v.  Dare 305 

Grieve  and  Moffat  v.  Annin  and 
Henry 461 


H 

Hankinson  v.  Baird 130 

Harrison  v.  Sloan 410 

Harvey  v.  Trenchard 126 

Hay  v.  Bruere 212 

Hoffman  v.  Brown 429 

Howell  v.  Robertson 142 

Hunt  v.  Boylan 211 


Jessup  v.  Cook 434 


Kennedy  v.  Nixon 159 

Kingsland  v.  Gould  et  al 161 


Lambert  and  Jones  v.  Moore 131 

(v) 


VI 


TABLE  OF  CASES. 


M 

PAGE. 

Maffit  ads  Den  ex  dem.  Tonkins...  228 

M'Donald  v.  Lawry 414 

Meredith  v.  Banks 408 


Newton.  Overseers  of,  v.  Overseers 
of  Gloucestertown...  ..  405 


Overseers  of  Hopewell  v.  Amwell.  169 
Overseers  of  Newton  v.  Gloucester 

Town 405 

Overseers  of  Tewksbury  v.  Wash- 
ington   177 


Peppinger  v.  Low 384 

Perrine  v.  Executors  of  Perrine...  133 


Reading  v.  Reading 186 

Richards  v.  Drinker  et  al 307 

Roome  and  Dodd  v.  Executors  of 

Counter Ill 

Ross  and  wife  v.  Winners 366 

Rowland  et  al.  v.  Stevenson 149 


S 

PAGE. 

Saddle  River  v.  Colfax 115 

Saltar  v.  Saltar 405 

Scott  v.  Conover 222 

Scott  v.  Stackhouse 431 

Sherrard  v.  Olden 344 

State  v.  Covenhoven 396 

State  v.  Fisler 305 

State  v.  Hopping 125 

State  v.  Hunt 303 

State  v.  Kirby 143 

State  v.  Parker 148 

State  v.  Rockafellow 343 

State  v.  Van  Waggoner 374 

Stevens  and  Sneed  v.  Meguire 152 

Stout  v.  Hopping 125 

Stulta  v.  Outcalt 130 


Thompson  v.  Button 220 

Todd  v.  Collins....  127 


Vanderveer  v.  M'Mackin 213 

Van  Dyke  v.  Dodd 129 

W 

Westcott  v.  Danzenbaker 132 

White  v.  Hunt 330 

White  v.  Hunt 415 

Wildes  v.  Mairs 320 

Wilkins  and  Black  v.  Budd 153 

Wilson  v.  Wilson 95 

Woodruff  v.  Smith....                  ..  214 


TABLE  OF  CASES  CITED. 


PAGE. 


Anderson  v.  Runyon 325 

Archbish.  of  Canterbury  v.  Brown.  ]  99 
Archbish.  of  Canterbury  v.  House..  202 
Archbish.  of  Canterbury  v.  Wills...  199 
Atkinson  v.  Haines 327 


Barrett  v.  Fletcher 317 

Bartlett  v.  Hebbes 426 

Baylie  v.  Taylor 317 

Bennett  v.  Alcott 325 

Berry  v.  Penring 319 

Bladder  v.  Webb 113 

Blower  v.  Morrett 137 

Board  v.  Kronk 118 

Burridge  v.  Braciyl 138 


Cadogan  v.  Kennett 459 

Carter  v.  Marcott 67 

Chews  v.  Sparks 458 

Clerk  v.  Tucker 365 

Cox  v.  Rolt 326 

Cranch  v.  Kirkman...,  ........  380 


D'Eon's  case 350 

Deux  v.  Jefferces 430 

Doe  v.  Routledge 459 


E 


Edmondson  v.  Matchet....  ..  325 


Fabritius  v.  Cook 443 

Flatt  v.  Abrahams 298 

Ford  v.'Lord 449 

Fores  v.  Wilson 327 

Foulkes  v.  Selway 373 


G 

PAGE. 

Gillman  v.  Hill 3*4 

Goodtitle  v.  Newman 369 

Gould  v.  Bailey 121 

Gray  v.  Jefferies 324 

Greenside  v.  Benson 200 

Griffin  v.  Spencer 317 


H 

Hatnbly  v.  Trott 395 

Hankins  v.  Colclough 319 

Head  v.  Providence  Ins). 304 

Hewlett  v.  Strichland 3^5 

Hutton  v.  'Mansell....  ..  i!;>f) 


Johnson  v.  Calkins....  ..  374 


K 


177 


King  v.  Mellingham. 
L 


Latlpss  v  Holmes 3^3 

Livingston  v.  Gibbons 2^'9 

Lucas  v.  Wilson 393 


M 

Mease  v.  Mease 292 

Meredith  v.  Allen 317 

Mostyn  v.  Fabrigus 298 


N 

Norton  v.  Jason....  ..  327 


Oswald  v.  Legh. 


....  350 

(VII) 


VIII 


TABLE  OF  CASES  CITED. 


-PAGE. 

Patten  v.  Halotead 125 

Pbilhi*  v.  Garth 114 

Pitts  v.  Case 426 

Postelthwaite  v.  Parker 325 


Tex  v.  Ivlwnrds 401 

Hex  v.  Harris 402 

Hoberts  v.  Harnaze 298 

Bussell  v.  Corne 324 

Kussell  v.  Uammond 458 


S 


Shinn  v.  Earnest 131 


PAGE. 

Shotwell  v.  Kelley 121 

Sippora  v.  Bansett 325 

Studdiford  v.  Ferris 131 


Tillotson  v.  Cheetham »...  331 

Townshend  v.  Windham 458 

Treasurer  v.  Jersey  Bank 103 

Twine's  Case 458 


W 

Wallis  v.  Pipon 200 

Warren  v.  Matthews 72 

Welford  v.  Liddell 380 

Wright  v.  Hartehorne 457 


CASES   DETERMINED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE   OF    NEW   JERSEY, 

AT  NOVEMBER  TERM,  1821. 


ROBERT  ARNOLD  against  BENAJAH  MUNDY. 

IN  TRESPASS. 

1.  Navigable  rivers,  where  the  tide  ebbs  and  flows,  the  ports,  bays,  coasts  of 
the  sea,  including  both  the  waters  and  the  land  under  the  waters,  for  the  pur- 
poses of  passing  and  repassing,  navigation,  fishing,  fowling,  sustenance,  ana  all 
other  uses  of  the  water  and  its  products,  are  common  to  all  the  people  of  New 
Jersey. 

2.  By  the  grant  of  Charles  II.  to  the  duke  of  York,  those  royalties,  of  which 
the  rivers,  ports,  bays,  and  coaste  were  a  part,  passed  to  the  duke  of  York,  as 
the  governor  of  the  province  exercising  the  royal  authority,  and  not  as  the  pro- 
prietor of  the  soil,  and  for  his  own  use. 

3.  Upon  the  Revolution,  all  those  royal  rights  vested  in  the  people  of  New 
Jersey,  as  the  sovereign  of  the  country,  and  are  now  in  their  hands. 

4.  The  proprietors  of  New  Jersey  did  not,  under  the  grant  from  the  duke  of 
York,  take  such  a  property  in  the  soil  of  the  navigable  rivers  in  this  state,  that 
they  could  grant  several  fisheries  therein. 

5.  A  person  who  plants  oysters  on  the  bed  of  a  navigable  river,  below  low 
water  mark,  has  not  such  a  property  therein  as  to  enable  him  to  maintain  tres- 
pass against  a  person  taking  tnem  away,  although  the  oyster  bed  should  be 
adja',ent  to  his  own  shore. 

6.  A  grant  of  land  bounded  upon  a  fresh  water  stream  or  river,  where  the  tide 
neither  ebbs  nor  flows,  extends  aafilum  aquae;  but  a  grant  bounded  upon  a  navi- 
gable river  extends  to  the  edge  of  the  water  only. 

This  was  an  action  of  trespass  for  breaking  the  close  of  the 
plaintiff,  situated  in  Perth  Amboy,  and  taking  his  oj'sters,  &c. 
The  cause  came  on  to  be  tried  at  the  Middlesex  circuit,  before 
his  honour  the  Chief  Justice  and  a  special  jury,  at  the  Decem- 
ber sessions,  1819.  On  the  trial,  the  plaintiff  deduced  title  to  the 
oystery — 

VOL.  i.  A 


NEW  JERSEY  SUPEEME  COURT. 


Arnold  v.  Mundy. 


1.  Under  surveys   to    Peter  Sonmans,   dated    28th    March, 
1689-90,  and  20th  January,  1685,  to  the  river  opposite  to  the 
oystery,  and  deduced  title  down  to  himself. 

2.  Under  a  survey,  dated  8th  April,  1818,  for  the  land  where 
the  oysters  were  planted ;  and  showed  a  number  of  grants  of 
fisheries  and  beds  of  navigable  rivers  by  the' proprietors,  both 
before  and  after  the  surrender. 

The  plaintiff  proved,  that  Coddington,  from  whom  be  pur- 
chased the  farm,  had  staked  off  the  oyster  beds  in  dispute  in 
front  of  his  farm  near  thirty  years  ago.  That  he  claimed  the 
exclusive  right  to  the  enjoyment  of  the  oysters,  and  attempted, 
and  did  drive  people  off  who  came  under  a  claim  of  common 
right;  some  of  them,  however,  would  resist,  and  several  lawsuits 
grew  out  of  their  disputes. 

After  the  plaintiff  purchased,  he  bought  oysters,  and  planted 
them  on  the  beds,  and  staked  it  off.  It  appeared,  that  he  was  at 
considerable  expense  in  planting,  and  bought  several  boat  loads, 
and  claimed  an  exclusive  right  as  far  as  he  had  planted,  and 
drove  off,  as  far  as  he  was  able,  every  one  who  attempted  to  take 
oysters  without  his  leave.  The  staking  was  no  injury  to  the  navi- 
gation. The  bed  from  which  the  oysters  were  taken  is  bare  at 
very  low  tides,  but  is  below  the  ordinary  low  water  mark.  After 
the  survey  of  1818,  the  defendant  came,  at  the  head  of  a  small 
fleet  of  skiffs,  and  took  away  these  oysters,  avowedly  to  try  the 
right. 

The  defendant  pleaded  not  guilty,  and  gave  notice,  that  the 
locus  in  quo  was  a  public  navigable  river,  in  which  the  tide  flows 
and  rcflows,  in  which  oysters  grow  naturally,  and  that  all  the 
citizens  of  the  state  had  a  common  right  to  take  oysters  therein 
&c.  After  the  plaintiff  had  rested  his  cause, 

The  counsel  for  the  defendant,  Messrs.  Wood  and  Scott,  moved 
ifor  a  nonsuit.  They  contended  that  the  claim  under  the  Sonmans' 
•patent  of  1685  and  1689-90,  bounded  on  the  river,  and  there- 
fore was  limited  to  high  water  mark.  That  the  title  by  occu- 
pancy had  not  been  made  out  in  proof;  inasmuch  as  Ihe  people 
had  always  claimed  their  rights  while  Coddington  was  in  pos- 
session, and  no  acquiescence  of  this  kind  would  take  away  a 
public  right,  which  was  now  claimed  by  the  defendant.  The 
plaintiff  must  therefore  depend  upon  his  title  under  the  survey 
.of  .1818,  and,  if  that  will  not  support  him,  he  must  be  nonsuit. 


NOVEMBER  TERM,  1821. 


Arnold  v.  Mundy. 


They  contended — 

1.  That  the  right  to  the  soil  of  navigable  rivers,  where  the 
'tide  ebbs  and  flows,  is  in  the  people  of  New  Jersey,  and  belongs 

to  the  state. 

That  the  soil  to  navigable  rivers,  the  sea  and  the  arms  thereof, 
was  not  granted  by  king  Charles  II.  to  the  duke  of  York,  by  the 
fair  construction  of  the  charter ;  and  that,  if  it  was,  it  was  void, 
as  the  king  could  not,  on  the  principles  of  the  common  law, 
make  such  a  grant.  That  he  held  the  right  thereto  for  great 
public  purposes,  as  trustee  for  the  public,  and  subject  to  the 
right  of  the  people  to  navigate  and  fish,  &c.  It  was  public 
domain  and  the  property  of  the  nation,  and  on  principles  of 
national  law,  as  well  as  the  common  law,  could  not  be  granted 
by  the  king. 

2.  That  if  the  proprietors  had  a  right  to  the  soil  of  the  Rari- 
ton  river,  they  could  not  grant  a  right  of  several  fishery,  and 
thus  deprive  the  people  of  New  Jersey  of  their  rights.      The 
right  of  common  fishery  was  a  vested  right,  derived  from,  and 
sanctioned  by,  common  law  principles,  and  which  their  ancestors 
brought  over  with  them. 

By  the  usurpation  of  the  Norman  kings  on  the  principles  of 
Saxon  liberty,  prior  to  the  reign  of  Henry  II.  the  king  might 
grant  a  fishery ;  but  since  then  he  is  restrained  by  Magna  Charta, 
which  simply  restored  the  principles  of  the  ancient  law. 

That  the  English  pretended  to  claim  this  country  by  the  right 
of  discovery,  which  was  a  mere  inchoate  right,  and  could  not  be 
consummated  until  they  found  inhabitants  and  occupied  the 
country. 

That  the  people  brought  over  to  this  country  the  same  rights 
which  they  possessed  in  England.  They  had  the  same  rights  in 
navigable  rivers  here  as  in  England  ;  and  the  king  had  no  greater 
rights  over  the  people  of  this  country  than  over  the  people  of 
England.  Magna  Charta  applied  here  in  full  force.  This  was 
declared  by  the  Declaration  of  Independence,  and  asserted  by 
all  our  writers  of  the  day;  and  was  one  of  the  great  principles 
upon  which  our  revolutionary  patriots  founded  their  opposition 
to  the  acts  of  parliament. 

It  was  further  contended,  that  if  the  grant  of  Charles  II. 
passed  the  right  of  fishery  at  all,  it  was  as  an  incident  of  the  sov- 
ereign power,  and  revested  in  the  sovereign  by  the  surrender, 


NEW  JERSEY  SUPREME  COURT. 


Arnold  v.  Mundy. 


and,  on  the  Revolution,  as  one  of  the  incidents  of  sovereignty 
vested  in  the  people;  and  none  but  the  legislative  power  could 
control  the  rights  of  the  people. 

Again — that  admitting  that  the  king  of  England  could  grant 
the  soil  of  the  rivers  and  the  right  of  several  fishery,  yet  his 
delegates  or  sub-sovereigns  could  not;  and  therefore  the  duke  of 
York  could  not  grant  it,  as  he  was  restricted  to  govern  according 
to  the  laws  and  statutes  of  England.  By  the  grant  to  the  duke 
of  York,  he  took  a  feudality,  and  not  an  allodium.  By  the  sur- 
render, the  rights  of  property  were  left  as  before,  but  the  right 
of  fishery,  being  a  royal  franchise,  an  act  of  sovereign  power,  if 
it  ever  vested  in  the  grantees  of  the  duke  of  York  vested  as 
incident  to  the  sovereign  power,  and,  by  the  surrender,  passed 
•with  the  powers  of  government. 

The  counsel  for  the  defendant  cited,  illustrated,  and  relied  on 
the  following  cases.  Cooper's  Justinian  68.  Vattel  11,  117.  2 
Slack.  Com.  39.  4  Sac.  Abr.  Prerogative  (D)  15fi.  3  Cruise 
297  (2  vol.  Am.  Ed.}  Willed  Rep.  265.  Bracton  (en  passim.') 
6  Mod.  E.  73  (93.)  Salk.  357.  Vattel  99  (S.  207.)  1  Slack. 
Com.  167  (107.)  Allinson's  N.  J.  Laws  57.  Learning  &  Spicert 
Grants  and  Concessions  589,  sec.  13  of  Surrender.  1  Penn.  R. 
391.  South.  R.  61.  Learning  &  Spicer  627  (S.  33)  590,  art. 
13.  2  Penn.  R.  942.  Val  391.  Pat.  79,  416.  Smith's  Hist. 
N.  J.  89,  119,  120,  188,  256,  291.  2  Slack.  Com.  417.  2  H. 
Slack.  182. 

The  counsel  for  the  plaintiff  contended — 

That  the  great  principle  of  the  common  law  respecting  prop- 
erty is,  to  assign  to  everything  capable  of  ownership  an  owner. 
That  law  assigned  the  ownership  of  the  sea  and  the  arms  thereof, 
and  the  navigable  rivers  to  the  king.  He  has  not  only  a  right  of 
jurisdiction  over  the  sea,  but  he  has  a  right  of  property  and  own- 
ership of  the  soil  of  the  mare  clausum,  the  arms  of  the  sea  and 
navigable  rivers,  founded  on  his  ability  to  possess  them  by  his 
navies.  A  subject  may  have  a  right  in  the  soil  of  tho.sea  &c.  by 
grant  from  the  king;  and  in  rivers  where  the  tide  does  not  ebb 
and  flow,  and  not  navigable,  a  grant  to  the  bank  gives  them  the 
right  of  soil  to  thofilum  aquas. 

That  whoever  has  a  right  to  soil  covered  with  water,  the  right 
of  fishing  is  annexed  to  it.  That  no  common  law  case  has  been 
produced  denying  this  position.  That  the  only  doctrines  that 


NOVEMBER  TERM,  1821. 


Arnold  v.  Mundy. 


conflict  with  it  are  drawn  from  the  civil  law.  ffhe  common  law 
writers  all  acknowledge  the  right  of  the  king  to  grant  or  alienate 
whatever  he  holds  in  propriety,  as  the  head  of  the  nation. 

The  doctrine  of  the  defendant  proves  too  much;  as,  if  true, 
it  shows  that  he  had  no  right  to  grant  the  land  of  New  Jersey 
at  all,  it  being  as  much  part  of  the  public  domains  as  the  rights 
of  fishery.  That  what  passed  under  the  grant  to  the  duke  of 
York,  cannot  be  questioned  in  New  Jersey,  after  a  lapse  of  two 
centuries.  It  has  been  settled  in  New  Jersey,  and  we  hold  all 
our  rights  under  it.  The  right  of  fishing  is  annexed  to  the  soil, 
and  whoever  has  the  right  of  soil,  has  the  right  of  fishing.  The 
right  of  the  king  results  from  the  law  assigning  to  him  the  own- 
ership of  the  soil. 

In  answer  to  the  assertion,  that  the  right  to  a  several  fishery 
does  not  exist  in  navigable  rivers  in  New  Jersey,  it  was  said,  that 
the  cases  on  which  the  defendant  relies  are  cases  of  mere  dicta, 
and  also  are  cases  of  free  fishery,  which  is  not  founded  on  the 
right  of  soil,  and  are  therefore  not  hostile  to  our  positions.  That 
much  confusion  has  arisen  from  the  inaccuracy  in  the  books,  in 
confounding  free  and  several  fisheries.  The  plain  r-ule  to  be  ex- 
tracted from  the  books  is,  that  while  the  soil  of  the  sea  &c.  re-' 
mains  in  the  king,  the  people  have  a  common  right  of  fishing, 
not  &,  jus  publtium,  which  is  only  applicable  to  highways.  There 
the  jus  privatum  of  the  subject  is  charged  with  the  jus  publicum, 
which  does  not  belong  to  the  king  only,  but  to  his  subjects,  and 
cannot  be  taken  away  without  prostration  of  liberty.  The  right 
of  fishery  is  different,  and  may  be  compared  to  the  right  of  com- 
mon, which  exists  until  an  appropriation  of  the  thing  in  common, 
and  then  ceases. 

\  That  the  only  sound  distinction  between  the  right  of  fishery 
in  navigable  rivers  and  rivers  not  navigable  is,  that  in  the  latter 
it  must  belong  to  a  citizen,  and  in  the  former,  prima  facie,  it  is 
in  the  king,  and  so  long  as  it  remains  in  him  it  is  public  and 
common.  The  right  of  free  fishery  is  a  royal  franchise,  but  the 
right  of  several  fishery  is  not,  and  this  distinction  destroys  the 
whole  of  the  adverse  argument.  The  right  of  several  fishery  is 
a  right  by  reason  of,  and  in  concomitance  with  the  land,  and 
founded  on,  and  annexed  to  it,  and  when  the  soil  of  a  navigable 
river  is  parted  with,  the  right  of  several  fishery  begins.  A  free 
fishery  is  a  royal  franchise  in  the  hands  of  the  subject,  founded 


SEW  JERSEY  SUPREME  COURT. 


Arnold  v.  Mundy. 


on  grant  or  prescription  from  the  king,  distinct  from  the  land. 
The  king  still  retains  the  right  of  propriety  in  the  soil,  but  parts 
only  with  the  right  of  fishery.  If  this  distinction  is  well  founded, 
then  the  section  of  Magna  Charta,  on  which  the  defendant  re- 
lies, applies  only  to  free  fisheries,  and  not  to  several.  Slack. 
and  Cruise  both  confine  it  to  free  fisheries.  But  Magna  Charta, 
so  far  as  regards  this  subject,  is  repealed :  so  says  the  Mirror, 
Coke,  &c.  If  not,  it  does  not  apply  here ;  it  was  local,  and  there- 
fore could  not  be  of  authority  here.  That  although  we  brought 
over  the  great  principles  of  the  English  liberty  contained  in 
what  is  called  the  folk  law,  it  was  never  supposed  that  the  mere 
statutes  (which  this  part  of  the  Magna  Charta  is)  applied  here; 
they  were  local,  and  it  might  as  well  be  said,  the  game  laws  &c. 
applied. 

That  the  16th  chap,  of  Magna  Charta,  on  which  Blackstone 
founds  his  pobition,  that  since  the  reign  of  Henry  II.  the  king 
could  not  grant  a  free  fishery,  was  wholly  misunderstood. 

That  by  putting  rivers  in  defence,  was  meant  merely  barring 
fishing  or  fowling  in  a  river,  fresh  or  salt,  till  the  king  had  taken 
his  pleasure  of  the  writ  de  defensione  reparie.  Harg.  L.  T.  7. 

That  neither  the  proprietors  nor  colonists  ever  supposed  that 
the  chapters  of  Magna  Charta  applied;  for  in  the  grants  and 
concessions  they  secured  all  the  essential  rights  of  a  free  man, 
and  enacted  statutes  placing  the  rights  and  liberties  of  the  citi- 
zen on  a  more  rational  and  secure  basis  than  any  part  of  Magna 
Charta.  It  was  not  true,  that  the  citizens  of  New  Jersey  held 
their  rights  nnder  Magna  Charta  as  such.  The  grants  and  con- 
cessions, and  the  bill  of  rights  of  1698,  1695,  contains  the  prin- 
ciples of  civil  and  religious  liberty  better  defined  and  more 
broadly  based  than  any  thing  to  be  found  in  the  British  consti- 
tution. In  these  the  settlers  contract  also,  that  they  shall  have 
lands  for  keys,  wharfs,  and  harbours,  and  also  free  passage 
through  or  by  any  sea,  sounds,  rivers,  &c.  from  the  ocean.  The 
settlers  found  the  proprietors  in  possession  of  an  extensive 
country,  and  they  purchased  under  them,  and  cannot  now  turn 
round  and  deny  their  title,  which  would  be  like  a  tenant  denying 
the  title  of  his  landlord.  The  proprietors  not  only  held  under 
the  grant  from  the  duke  of  York,  but  they  bought  the  title  of  the 
Indians,  which  some  suppose  the  better  title. 

Again — by  the  principles  of  the  common  law,  the  king  held 


NOVEMBER  TERM,  1821. 


Arnold  v.  Mundy. 


the  soil  of  navigable  rivers  in  full  propriety.  "He  could  grant  that 
as  well  as  the  land.  If  restrained  at  all,  it  must  be  by  Magna 
Charta,  chap.  16,  Henry  II.  which  was  repealed,  did  not  apply, 
or  did  not  extend  to  new  discovered  countries  out  of  the  domin- 
ions of  England. 

2.  That  the  king  did  not  grant  the  right  of  several  fishery. 

This  state  was  originally  granted  by  patent,  dated  1606,  by 
king  James  to  Sir  Thomas  Gates  and  others,  which  patent  also 
included  Virginia,  Maryland,  Pennsylvania,  New  York  and  the 
New  England  states,  and  was  repealed  in  1623.  It  was  again 
granted,  in  1664,  by  king  Charles,  to  the  duke  of  York.  At  this 
time  the  eastern  part  of  New  Jersey  was  in  possession  of  the 
Dutch,  and  before'  this  grant  was  known  here,  the  royal  gov- 
ernor, Nicholls,  conquered  it  from  the  Dutch.  Although  it  was 
held  under  the  king  from  that  time,  yet  it  was  not  formally  ceded 
to  him  until  the  treaty  of  Breda  in  1667,  and  the  grant  of  1682 
was  no  doubt  made  to  obviate  the  doubts  that  well  might  arise, 
whether,  by  the  conquest  of  1664,  the  title  did  not  revest  in  the 
king.  And  the  assembly,  in  1682,  resolved  that  the  land  and 
government  were  purchased  together,  and  that  the  concessions 
were  agreed  on  as  fundamental,  and  the  ground  of  the  govern- 
ment of  New  Jersey.  He  granted  the  rights  of  sovereignty  to  the 
proprietors,  as  well  as  the  lands,  rivers,  soils,  waters,  and  fishings 
within  certain  bounds.  It  was  not  neceesary  that  he  should  use 
the  term  several  fishery,  because  the  same  was  granted  ex  vi  termini 
by  either  of  those  terms.  He  declared  by  the  grant,  that  it 
should  be  good  and  effectual  in  the  law,  notwithstanding  any  act, 
statute,  or  restriction  to  the  contrary. 

If  then  the  eastern  part  of  New  Jersey  was  acquired  by  con- 
quest from  the  Dutch,  and  it  was  thought  necessary  to  validate 
the  grant  of  1664,  made  before  the  conquest,  by  the  grant  of 
1682,  made  after;  according  to  the  doctrine  of  Blackstone,  Holt, 
and  Tucker,  he  might  impose  his  own  laws.  If  he  might  impose 
his  own  laws,  he  might  delegate  the  right  of  making  laws,  and 
did  so  with  only  one  restriction.  "Wherever  the  king  intended  to 
restrict  the  right  of  fishing  in  proprietary  grants,  he  did  it,  as  in 
the  grant  of  Maryland.  That  this  is  a  cotemporaneous  exposi- 
tion by  the  great  lawyers  of  the  day,  who  were  the  constitutional 
advisers  of  the  king,  and  who  inspected  these  grants. 

That  by  the  surrender,  the  rights  of  sovereignty  and  govern- 


NEW  JERSEY  SUPREME  COURT. 


Arnold  v.  Mundy. 


ment,  and  the  incidents  thereunto,  passed.  That  it  is  to  be 
taken  in  connection  with  the  treaty  preceding  it,  in  which  it  is 
said,  that  the  rights  accruing  to  the  proprietors  from  the  seas 
adjacent,  could  not  be  well  circumscribed.  The  right  of  free 
fishery  passed  as  an  incident  to  sovereignty  in  the  seas  adjacent, 
which  were  not  granted  to  the  proprietors  by  the  grant  of  soil, 
but  as  annexed  to  the  government.  The  grant  bounds  them  on 
the  east  by  the  main  sea,  and  on  the  south  by  the  ocean.  But, 
as  sovereign,  their  right  extended  to  three  leagues.  This  right 
passed  on  the  surrender  to  the  crown,  and  by  the  Declaration 
of  Independence  vested  in  the  people  of  New  Jersey,  as  sove- 
reign, together  with  the  rights  of  free  fishery,  which  now  can 
only  be  granted  by  the  sovereign  power. 

In  conclusion  it  was  argued,  that  the  right  of  the  soil  re- 
mained in  the  proprietors,  and,  when  they  granted  the  soil,  they 
ipso  facto  granted  the  several  fishery,  and  therefore  it  is  of  no 
consequence  to  the  plaintiff  whether  he  derives  his  title  under 
the  Sonman's  survey  in  1685,  or  the  survey  in  1818.  The  counsel 
referred  to  the  doctrines  in  our  sister  states,  as  strengthening  the 
view  they  had  taken  of  the  subject,  and  also  to  the  fisheries 
on  the  Delaware.  In  Connecticut,  Pennsylvania,  and  Massachu- 
setts, it  is  held  that  the  right  of  fishery  is  annexed  to  the  soil, 
and  may  be  granted. 

It  was  lastly  argued,  that  in  this  case,  the  fishery  claimed  by 
the  plaintiff  was  a  local  one,  and  that  the  plaintiff's  claim  was 
strengthened  by  the  act  of  planting  the  oysters.  The  cases  here- 
tofore decided  in  New  Jersey,  no  way  reached  the  present,  and 
it  was  entirely  open.  They  cited  1  Con.  II.  382.  Davis'  Hep. 
150,  &c.  2  Slack.  Com.  199,  261,  &c.  18,  39.  2  Bin.  476.  1 
Mod.  107.  1  Slack.  Com.  299.  5  Rep.  107.  4  Bur.  2164.  5 
Bur.  2814.  3  Jac.  L.  D.  62,  32,  Constable's  case.  6  Com. 
Dig.  Prerogative  55.  3  Caine's  Rep.  Hargrave  17,  19,  5,  18, 
22,  10,  14,  9,  20,  21,  33,  34,  11,  36,  26,  7,  31,  32.  Salk.  666. 
10  Mass.  T.  R.  212.  Learning  &  Spicer  163,  art.  19,  258,  3, 
373,  5,  4,  23,  589,  594,  590,  595,  14,  15,  153,  368,  371,  2,  20,  7, 
614.  4  Mass.  R.  144,  527.  2  Johnson  357.  Smith's  Hist'.  N.  J. 
62,  67,  168,  163,  8,  1  Swift  341.  Tucker's  Black.  395.  1  Har- 
ris &  M 'Henry  564. 

KIRKPATRICK  C.  J.  Abating  a  little  want  of  courteousness 
towards  the  memory  of  some  of  the  greatest  luminaries  of  the 


NOVEMBER  TERM,  1821. 


Arnold  v.  Mundy. 


English  law,  and  indeed  I  may  say,  some  of  the  greatest  men 
that  ever  lived,  I  have  been  much  gratified  by  the  arguments 
presented  by  the  counsel  in  this  cause.  They  have  investigated 
the  subject  with  great  care,  and  great  ability,  and  they  have 
certainly  thrown  much  new  light  upon  the  view  in  which  it  had 
before  exhibited  itself  to  my  mind. 

The  principal  question,  however,  which  it  presents,  and  which 
is  now  to  be  determined,  is  a  new  question ;  it  has  never  before 
come  up  before  the  courts  of  justice  in  this  shape,  and  in  this 
direct  manner,  since  the  first  settlement  of  the  province.  It  is 
a  question  of  great  importance;  it  involves  immense  interests;  it 
lies  at  the  foundation  of  all  the  rights  of  fishery  hitherto 
claimed  or  exercised  in  the  state  of  New  Jersey. 

That  such  a  question  cannot  be  ultimately  decided,  or  even 
beneficially  discussed,  in  hastily  rendering  an  opinion  upon  a 
motion  for  a  nonsuit  at  a  circuit  court,  must  be  manifest  to  all; 
and  yet,  at  the  same  time,  what  might  be  said  upon  it  might 
prove  to  be  exceedingly  injurious,  by  exciting  false  hopes  or 
false  fears,  by  encouraging  those  who  claim  a  common  right  to 
make  unlawful  aggressions,  or  those  who  claim  several  rights  to 
make  unlawful  defences,  and  in  their  conflict  for  superiority,  for 
awhile,  not  only  to  disturb  the  peace  of  society  but  also  to  destroy 
the  very  subject  matter  of  controversy! 

If  it  were  possible,  therefore,  to  avoid  the  expression  of  an 
opinion  at  present,  and  to  take  a  verdict  for  the  damages  only, 
subject  to  the  opinion  of  the  court  at  bar  upon  the  title,  and  that 
too,  with  leave  to  either  party  to  put  the  case  in  such  form  as  that 
it  might  be  carried  up  to  the  court  of  appeals,  as  is  sometimes 
done,  it  would  be  exceedingly  agreeable  to  me.  This,  however, 
I  know  can  be  done  only  by  the  consent  and  agreement  of  the 
parties,  and  it  is  with  that  view  I  propose  it,  and  with  that  view 
would  beg  leave  to  submit  it  to  their  consideration. 

[The  defendant  declined  the  proposition,  and  called  for  the 
opinion  of  the  court,  when  I  proceeded.] 

Constrained,  as  I  am,  to  render  an  opinion  in  this  hasty  man- 
ner, I  shall  merely  state  my  present  views  of  the  right  which  the 
plaintiff  has  exhibited,  as  concisely  as  I  am  able,  and  that  without 
recurring  either  to  books  or  arguments  to  support  them. 

The  action  is  for  a  trespass  in  entering  upon  the  plaintiff's 
oyster  bed,  and  taking  and  carrying  away  his  oysters.  To  sup- 


10  NEW  JERSEY  SUPEEME  COUET. 

Arnold  v.  Mundy. 

port  this  action,  the  plaintiff  must  shew  a  title  in  himself.  This 
title,  in  ordinary  cases,  may  be  either  a  fee  simple,  or  a  posses- 
sion accompanied  by  right,  without  a  fee  simple  or  an  actual  and 
exclusive  possession,  without  either  the  fee  simple  or  the  right, 
for  such  possession  is  good  against  all  the  world,  till  a  better  right 
is  shewn.  To  make  out  this  title,  the  plaintiff  has  attempted  to 
shew — 1.  In  the  first  place,  an  actual  and  exclusive  possession. 
2.  In  the  second  place,  a  possession  accompanied  by  right.  3.  In 
the  third  place,  a  fee  simple  under  the  proprietors  of  New  Jersey. 

As  to  the  first  and  second  of  these,  they  are  no  other  way 
proved  than  by  showing  the  conveyance  for,  and  the  possession 
of,  certain  lands  upon  the  shore  opposite  to  this  bed,  extending,  to 
make  the  most  of  it,  to  low  water  mark  only;  and  by  shewing 
further,  the  staking  off  the  said  bed,  the  planting  of  oysters  upon 
it,  and  sometimes  fishing  there,  as  other  people,  also,  sometimes 
did. 

Upon  this  I  observe,  that  a  grant  of  land  to  a  subject  or  citi- 
zen, bounded  upon  a  fresh  water  stream  or  river,  where  the  tide 
neither  ebbs  nor  flows,  extends  to  the  middle  of  the  channel  of 
such  river;  but  that  a  grant  bounded  upon  a  navigable  river,  or 
other  water,  where  the  tide  does  ebb  or  flow,  extends  to  the 
edge  of  the  water  only,  that  is  to  say,  to  high  water  mark,  when 
the  tide  is  high,  and  to  low  water  mark,  when  the  tide  is  low, 
but  it  extends  no  farther. 

The  intermediate  space,  however,  between  the  high  water 
and  low  water  mark,  may  be  exclusively  appropriated  by  the 
owner  of  the  adjacent  land,  by  building  thereon  docks,  wharves, 
storehouses,  salt-pans,  or  other  structures  which  exclude  the 
reflow  of  the  water. 

All  pretence  of  claim,  therefore,  to  this  bed,  founded  upon  the 
possession  of  the  adjacent  land,  must  fail.  And  if  the  plaintiff 
would  set  up  a  possession  founded  upon  another  right,  that  is, 
upon  his  staking  off  the  bed,  planting  oysters  upon  it,  and 
sometimes  fishing  there,  even  if  it  were  a  subject  matter  which 
could  be  taken  possession  of  in  that  way,  that  possession  has  not 
been  proved  to  be  either  so  continued  or  so  exclusive  as  to  estab- 
lish his  right  against  those  having  equal  claim  with  himself.  He 
sets  up  no  prescription  ;  he  shews  no  grant  to  support  such  pos- 
session. He  places  himself  in  the  situation  of  a  fisherman,  who, 
because  he  has  fished  in  certain  waters  for  many  years,  should 
claim  the  exclusive  possession  and  the  exclusive  right. 


NOVEMBEE  TEEM,  1821.  11 

Arnold  v.  Mundy. 

Then,  as  to  the  title  derived  from  the  proprietors.  And  first 
of  the  form  of  their  conveyance;  and  then  of  their  right  to 
convey. 

1.  The  proprietors  of  New  Jersey  are  tenants  in  common  of 
the  soil;  their  mode  of  severing  this  common  right  is,  by  issuing 
warrants,  from  time  to  time,  to  the  respective  proprietors,  ac- 
cording to  their  respective  and  several  rights,  authorizing  them 
to  survey  and  appropriate  in  severalty  the  quantities  therein 
contained.     Such  warrant  does  not  convey  a  title  to  the  proprie- 
tor; he  had  that  before.      It  only  authorizes  him  to  sever  so 
much  from  the  common  stock,  and  operates  as  a  release  to  tes- 
tify such  severance.     This  is  manifestly  the  case,  when  the  pro- 
prietor locates  for  himself.    When,  instead  of  locating  for  himself, 
he  sells  his  warrant  to  another,  that  other  becomes  a  tenant  in 
common  with  all  the  proprietors  pro  tanto,  and  in  the  same  man- 
ner he  proceeds  to  convert  his  common,  into  a  several  right. 
Eegularly  there  is  a  deed  of  conveyance  upon  the  transfer  of 
this  warrant,  and  that  deed  of  conveyance  is  the  foundation  of 
the  title  of  the  transferee. 

It  is  true,  that  the  survey  made  in  pursuance  of  this  warrant 
must  be  inspected  by  the  surveyor  general,  approved  by  the 
board,  and  registered  in  their  books;  but  all  this  is  for  the  sake 
of  security,  order,  and  regularity  only,  and  is  by  no  means  the 
passing  of  the  title.  It  proves  the  title  has  passed,  but  it  is  not 
the  means  of  passing  it.  It  may  be  likened  to  the  acknowledg- 
ment of  a  deed  by  a  married  woman.  Her  deed  cannot  prevail 
against  her  unless  such  acknowledgment  be  regularly  made  and 
recorded;  yet  such  acknowledgment  does  not  pass  the  title,  the 
deed  has  already  done  that,  and  it  operates  from  the  day  of  its 
date.  Upon  this  exception  to  the  plaintiff' &  title,  therefore,  I 
think  the  defendant  must  fail.  In  this  case,  the  warrant  and 
the  survey  were  before  the  trespass  charged,  but  the  recording 
of  it  was  said  to  be  after.  The  date  of  the  recording  was  not 
mentioned  on  the  record. 

2.  Then  as  to  the  right  of  the  proprietors  to  convey.    And 
upon  this  I  am  of  opinion,  that  by  the  law  of  nature,  which  is 
the  only  true  foundation  of  all  the  social  rights,  that  by  the  civil 
law,  which  formerly  governed  almost  all  the  civilized  world,  and 
which  is  still  the  foundation  of  the  polity  of  almost  every  nation 
in  Europe;  that  by  the  common  law  of  England,  of  which  our 


12  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

ancestors  boasted,  and  to  which  it  were  well  if  ourselves  paid  a 
more  sacred  regard;^  I  say  I  am  of  opinion,  that,  by  all  these, 
the  navigable  rivers,  where  the  tide  ebbs  and  flows,  the  ports, 
the  ba3-s,  the  coasts  of  the  sea,  including  both  the  water  and  tho 
land  under  the  water,  for  the  purposes  .of  passing  and  repassing, 
navigation,  fishing,  fowling,  sustenance,  ajid  all  the  other  uses  of 
the  water  and  its  products  (a  few  things  which  belonged  to  the 
king  in  his  private  right,  and  for  his  own  use  only  exceptcd)  arc 
common  to  all  the  people,  and  that  each  has  a  right  to  use  them 
according  to  his  pleasure,  subject  only  to  the  laws  which  regulate 
that  use:  that  the  property  indeed  vests  in  the  sovereign,  but  it 
vests  in  him  for  the  sake  of  order  and  protection,  and  not  for  his 
own  use,  but  for  the  use  of  the  citizen ;  in  the  same  sense  in  which 
he  holds  all  the  public  property  and  the  domains  of  the  crown, 
that  the  proceeds  thereof  may  be  collected  into  the  public 
treasury,  and  applied  to  the  public  benefit  and  the  public  defence, 
and  that  he  may  have  the  direct,  immediate,  uncontrolled  enjoy- 
ment of  them. 

I  am  of  opinion,  that  this  great  principle  of  common  law,  in 
process  of  time,  was  gradually  encroached  upon  and  broken 
down ;  that  the  powerful  barons,  in  some  instances,  appropriated 
to  themselves  those  common  rights;  that  the  kings  also  in  some 
instances  during  the  same  period,  granted  them  out  to  their  cour- 
tiers and  favourites;  and  that  these  seizures  and  these  royal 
favours  are  the  ground  of  all  the  several  fisheries  in  England,  now 
claimed  either  by  prescription  or  grant;  that  the  great  charter, 
as  it  is  commonly  called,  which  was  nothing  but  a  restoration  of 
common  law  rights,  though  it  did  not  annul  what  had  been  thus 
tortiously  done,  yet  restored  again  the  principles  of  the  common 
law  in  this,  as  well  as  in  many  other  respects;  and  that  since 
that  time  no  king  of  England  has  had  the  power  of  granting 
away  those  common  rights,  and  thereby  depriving  the  people 
of  the  enjoyment  of  them. 

I  am  of  opinion,  that  when  Charles  II.  took  possession  of  thid 
country,  by  his  right  of  discovery,  ho  took  possession  of  it  in  his 
sovereign  capacity;  that  he  had  the  same  right  in  it,  and  the  same 
power  over  it,  as  he  had  in  and  over  his  other  dominions,  and 
no  more;  that  this  right  consisted  in  granting  tho  soil  to  private 
persons,  for  the  purposes  of  settlement  and  colonization,  of  estab- 
lishing a  government,  of  supporting  a  governor,  of  conveying 


NOVEMBER  TERM,  1821.  13 

Arnold  v.  Mundy. 

to  him  all  those  things  appurtenant  to  the  sovereignty,  com- 
monly called  royalties,  for  the  benefit  of  the  colonists,  who  came 
over  here  clothed  with  all  the  essential  rights  and  privileges 
secured  to  the  subject  by  the  British  constitution;  but  that  he 
could  not,  nor  never  did,  so  grant  them  as  to  convert  them  into 
private  property ;  that  those  royalties,  therefore,  of  which  those 
rivers,  ports,  bays,  and  coasts  were  part,  by  the  grant  of  king 
Charles,  passed  to  the  duke  of  York,  as  the  governor  of  the 
province,  exei-cising  the  royal  authority,  for  the  public  benefit, 
and  not  as  the  proprietor  of  the  soil,  and  for  his  own  use ;  that 
they  passed  from  the  duke  of  York  to  his  grantees,  and  upon 
the  surrender  of  the  government,  and  as  appurtenant  thereto, 
and  inseparable  therefrom,  reverted  to  the  crown  of  England. 

And  I  am  of  opinion  further,  that,  upon  the  Revolution,  all 
those  royal  rights  vested  in  the  people  of  New  Jersey,  as  the 
sovereign  of  the  country,  and  are  now  in  their  hands;  and  that 
they,  having  themselves  both  the  legal  estate  and  the  usufruct, 
may  make  such  disposition  of  them,  and  such  regulation  con- 
cerning them  as  they  may  think  fit ;  that  this  power  of  disposi- 
tion and  regulation  can  be  exercised  only  by  the  legislative  body, 
who  are  the  representatives  of.  the  people  for  this  purpose  ;  that 
in  the  exercise  thereof  they  may  lawfully  bank  off  the  water  of 
those  rivers,  ports,  and  bays,  and  reclaim  the  land  upon  the 
shores;  the}-  may  build  dams,  locks,  and  bridges  for  the  improve- 
ment of  the  navigation  and  the  ease  of  passage;  they  may  clear 
out  and  improve  fishing  places  to  increase  the  product  of  the 
fishery ;  they  may  create,  improve,  and  enlarge  oyster  beds,  by 
planting  oysters  thereon,  in  order  to  procure  a  more  ample  sup- 
ply ;  they  may  do  all  this  themselves  at  the  public  expense,  or 
they  may  authorize  others  to  do  it  by  their  own  labour,  and  at 
their  own  cost,  giving  them  reasonable  tolls,  rents,  profits,  or 
exclusive  enjoyments;  but  that  they  cannot  make  a  direct  and 
absolute  grant,  divesting  all  the  citizens  of  their  common  right; 
such  a  grant,  or  a  law  authorizing  such  a  grant,  would  be  con- 
trary to  the  great  principles  of  our  constitution,  and  never  could 
be  borne  by  a  free  people.  These  principles  I  take  to  be  capable 
of  the  clearest  demonstration.  The  proprietors,  except  in  a  few 
instances,  made  probably  for  the  sake  of  experiment  only,  have, 
in  their  practice,  recognized  those  principles,  and  the  people 
have  uniformly  and  uninterruptedly  enjoyed  the  correspond- 


14  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

ing  rights,  from  the  first  settlement  of  the  colony  down  to  this 
day,  subject  only  to  such  regulation  and  such  restraint  as  the 
legislature  has  thought  just  and  right. 

From  this  short  statement,  it  is  seen  that,  in  my  opinion,  the 
proprietors,  as  such,  never  had,  since  the  surrender  of  the  gov- 
ernment, any  right  to,  interest  in,  or  power  over,  those  waters, 
or  the  land  covered  by  them  ;  and  that,  therefore,  the  grant  in 
question  is  void,  and  cannot  prevail  for  the  benefit  of  the  plain- 
tiff. And,  upon  this  view  of  the  subject,  I  am  constrained  to  say 

The  plaintiff  must  be  called. 

Upon  the  coming  in  of  the  Posted,  the  plaintiff's  counsel  ob- 
tained a  rule  to  shew  cause  why  the  nonsuit  should  not  be  set 
aside  and  a  new  trial  granted.  This  motion  was  argued  in  May 
term,  1821. 

Wall,  in  support  of  the  motion.  This  action  is  brought  for  a 
trespass  for  entering  on  the  plaintiff's  soil,  and  taking  and  carry- 
ing away  a  quantity  of  oysters  claimed  to  be  his. 

It  appears,  by  the  evidence,  that  the  plaintiff  claims  title  under 
— 1.  A  grant  from  the  proprietors,  dated  20th  January,  1685,  to 
one  Sonmans,  bounding  him  on  the  Rariton  river;  and  the  sub- 
sequent grants  under  Sonmans,  bounding  on  low  water  mark. 

2.  Under  a  grant  from  the  proprietors,  dated  10th  April,  1818, 
including,  by  metes  and  bounds,  the  very  place  on  which  the 
trespass  was  proved  to  have  been  committed. 

3.  From  the  act  of  planting  the  oysters  in  question,  by  his. 
own  care  and  industry. 

At  the  trial  of  this  cause  before  the  Middlesex  circuit,  in 
December,  1819,  the  plaintiff  was  nonsuited  by  order  of  his 
honour  the  Chief  Justice,  and  the  object  of  the  present  appli- 
cation is  to  set  aside  the  nonsuit  and  obtain  a  new  trial. 

In  the  discussion  of  this  application,  I  do  not  consider  it  neces- 
sary to  spend  any  time  in  directing  the  attention  of  the  court 
to  the  language  of  the  grants  under  which  the  plaintiff  claims, 
nor  to  tho  effect,  or  diversity,  between  the  two  grants,  the  one 
bounding  on  the  river,  and  the  other  ex  vi  termini,  including  the 
very  locus  in  question.  Assuming,  what  appears  to  mo  alto- 
gether incapable  of  being  denied,  that  if  soil  covered  with  water 
is  capable  of  grant,  then  that  the  plaintiff  in  this  case,  under  one 
or  both  of  his  titles,  may  well  claim  the  locus. 


NOYEMBEE  TEEM,  1821.  15 

Arnold  v.  Mundy. 

Passing  by,  then  for  the  present,  all  examination  of  the  evi- 
dence, respecting  which  there  is  little  or  no  dispute,  1  shall  con- 
tend, that  the  nonsuit  in  this  case  ought  to  be  set  aside,  and  a 
new  trial  awarded. 

1.  Because  the  plaintiff'  had  a  right  of  several  fishery  in  this 
oystery,  either  for — 1.  Floating  fish,  or  general,  exclusive,  and 
several  fishery.     2.  Or  a  right  to  a  local  fishery. 

2.  Because,  by  purchasing  or  gathering  the  oysters,  depositing 
them  on  the  premises,  and  staking  them  out,  he  acquired  such 
a  right  to  them  as  would  entitle  him  to  an  action  against  any  per- 
son who  should  take  them  without  his  leave. 

1.  In  endeavoring  to  establish  the  first  proposition,  it  will  be 
necessary  to  investigate — 1.  The  right  of  property  to  the  soil  of 
navigable  rivers  at  common  law,  and  to  inquire,  whether  it  waa 
the  subject  of  grant.  2.  The  right  of  property  to  the  soil  of  navi- 
gable rivers  in  New  Jersey,  and  whether  it  is  the  subject  of 
grant.  3.  Whether  by  the  grant  of  the  soil  of  navigable  rivers 
the  right  of  several  fishery  passes,  as  inseparable. 

1.  The  great  principle  of  the  common  law  of  England  is,  to 
assign  an  owner  to  every  thing  capable  of  ownership,  and  what- 
ever hath  no  other  owner  is  vested  by  law  in  the  king.  1  Black. 
298-9.  2  Black.  15,  261-2.  By  the  English  law,  or  constitution, 
all  land  is  supposed  to  have  been  the  property  of  the  king,  at 
some  time,  and  to  be  held  mediately  or  immediately  of  him.  6 
Com.  Dig.  60  (D  63).  This  is  said  to  be  derived  from  the  feudal 
system.  1  Black.  264.  The  common  law  has  also  assigned 
the  ownership  of  navigable  rivers,  of  arms  of  the  sea,  and  even 
of  the  mare  clausum,  to  the  king.  The  king  hath  the  sole  interest 
in  the  soil  of  navigable  rivers,  and  in  the  fisheries  thereof. 
Davies  155.  The  king  has  the  property  tarn  aquce,  quam  soli, 
and  all  profits  in  the  sea,  and  all  navigable  rivers.  5  Com.  Dig. 
102  (A,  .3).  The  king  is  the  owner  of  the  sea  and  soil.  Har. 
L.  T.  10,  11,  14,  17,  18.  5  Coke,  Constable's  case  107.  7  Coke 
18.  2  Black.  261.  The  sea  is  the  proper  inheritance  of  the  king. 
Davies  152. 

This  doctrine  of  the  common  law  is  in  perfect  accordance 
with  the  law  of  nature  and  of  nations.  Every  nation,  by  the  law. 
of  nature  and  of  nations,  is  the  proprietor  of  the  rivers,  as  well 
as  soil,  within  its  territorial  limits.  1  Rutherf.  91,  sec.  111.  Vattel 
120,  sec.  266.  By  the  same  law,  the  sea  itself,  to  a  certain 


16  NEW  JEKSEY  SUPKEME  COURT. 

Arnold  v.  Mundy. 

extent  and  for  certain  purposes,  may  be  appropriated  and  become 
exclusive  property,  as  well  as  the  land.  Vattel  127,  sec.  287.  Ib. 
125,  sec.  278.  Whether  the  soil  and  rivers  thus  belonging  to  a 
nation,  or  any  and  what  part  of  it  shall  be  enjoyed  in  common 
by  all  her  citizens,  or  whether  it  shall  be  appropriated  to  the 
exclusive  use  of  individuals?  and  if  so  appropriated,  by  whom 
such  appropriation  shall  be  made?  are  questions  which  depend 
on  the  will  of  the  nation  herself,  as  declared  in  her  constitu- 
tion and  laws.  The  nation  being  the  sole  mistress  of  the  prop- 
erty in  her  possession,  may  dispose  of  it  as  she  thinks  proper. 
Vattel  116,  sec.  257.  She  may  dispose  of  what  is  common  to  all 
the  citizens.  Ib.  116,  sec.  258.  Or  she  may  confer  the  right  on 
the  sovereign.  Ib.  117,  sec.  261.  In  that  case,  he  becomes  the 
organ  of  the  nation.  Ib.  118,  sec.  262. 

By  the  English  law,  or  constitution,  the  right  of  disposing  of 
the  public  domains  is  vested  exclusively  in  the  king;  and  he  had, 
until  long  after  the  reign  of  Charles  II.  the  right  of  alienating 
them  for  ever.  1  Slack.  286.  3  Cruise  14,  sec.  5.  Ib.  565,  sec. 
16.  He  may  also  grant  the  soil  of  navigable  rivers;  and  he 
may  grant  a  free  fishery  without  the  soil.  Har.  L.  T.  15,17,  18, 19, 
21,  22,  32,  33,  34,  56.  6  Com.  Dig.  60  (D  611).  4  Bur.  2163. 
Dames  150.  These  authorities  also  prove  that  a  subject  may 
prescribe  for  a  free  or  several  fishery  in  navigable  rivers  and 
arms  of  the  sea.  A  prescription  cannot  be  for  what  may  not  be 
granted.  2  Black.  265.  7  Coke  18. 

From  these  authorities,  it  abundantly  appears,  that,  by  the 
principles  of  the  common  law,  a  subject  may  have  a  right  of  soil, 
and  also  a  right  of  fishery,  in  navigable  rivers  and  arms  of  the 
sea,  by  grant  or  prescription.  No  case  oi  pure  unmixed  common 
law  origin  can  bo  produced  against  these  positions.  The  case  in 
Bracton  is  evidently  borrowed  from  the  civil  law,  and  ho  quotes 
the  very  language  of  the  Justinian  code.  In  Davies  150,  it  is 
expressly  denied  to  be  the  doctrine  of  the  common  law.  This 
case,  in  Davies,  is  also  recognized  as  good  authority  by  Justice 
Yates,  in  4  Bur.  2165,  and  by  Chief  Justice  Kent,  in  3  Caines 
318.  And  Lord  Hale's  treatise,  in  Har.  L.  T.  who  lays  down 
the  law  in  accordance  with  Davies,  is  cited  with  approbation, 
and  recognized  as  sound  law  by  Chief  Justice  Spencer.  17  John. 
209.  Indeed,  nothing  can  be  more  variant  than  the  civil  and 
common  law  on  the  subject  of  aquatic  and  riparian  rights.  By 


NOVEMBER  TERM,  1821.  17 

Arnold  v.  Mundy. 

the  civil  law,  every  citizen  has  the  right  to  use  the  land  of 
another,  on  the  banks  of  navigable  rivers,  for  towing.  The  com- 
mon law  denies  that  right.  3  Term  Rep.  253.  17  John.  209. 

The  grant  from  king  Charles  II.  to  William  Penn,  of  our  sis- 
ter state  of  Pennsylvania,  grants  the  soil  and  rivers,  and  fisheries 
within  its  limits.  Chief  Justice  Tilghman,  (2  Bin.  476;  expressly 
holds,  that  by  this  grant  he  became  entitled  to  the  fisheries.  And 
a  similar  principle  is  recognized,  (4  Mass.  140 ;  17  John.  203) 
as  to  the  right  of  the  people  to  grant,  by  express  words. 
Even  in  England,  then,  it  may  be  fairly  concluded,  from  a  care- 
ful examination  of  the  cases  cited,  that  the  king  could  lawfully 
grant  the  soil  of  navigable  rivers  and  arms  of  the  sea  to  a  sub- 
ject, and  that  it  might  be  held  either  by  grant  or  prescription, 
which  always  presupposes  a  grant. 

2.  Could  the  king  grant  the  right  of  soil  to  the  navigable  riv- 
ers in  New  Jersey,  and  did  he  grant  it?  This  opens  a  singular 
discussion,  at  this  day,  in  New  Jersey,  when  it  is  a  fact,  proved 
in  the  deduction  of  all  the  titles  in  New  Jersey,  that  he  did  grant 
the  lands;  and  that  every  foot  of  land  now  held  by  a  freeman  in 
New  Jersey  is  traced  up  to  the  grant  of  the  king.  What  had 
become  mere  fiction  in  England  is  an  undisputed  fact  here. 

All  lands  in  New  Jersey  were  held  immediately  of  the  king. 
He  granted  this,  as  well  as  all  the  other  colonies,  as  whim, 
caprice,  favour,  or  avarice  dictated.  They  were  considered  as  his 
private  domains,  and  were  held  and  granted  as  such.  This  doc- 
trine is  not  varied  by  proving,  that  the  king  became  entitled  to 
the  lands  and  rivers  in  this,  then  howling  wilderness,  in  virtue  of 
his  prerogative;  that  he  held  them  jura  coronal.  If  so,  still,  by 
the  law  of  England,  he  was  the  organ  of  tne  nation  to  alienate 
them ;  and  admitting,  (what  is  altogether  denied)  that  by  the 
conquest,  or  discovery,  of  this  country,  the  people  of  England 
became  entitled  to  a  common  right  of  fishery  in  the  navigable 
rivers,  arms  of  the  sea,  and  seas  of  this  extensive  territory,  yet  it 
has  been  already  proved,  that,  by  the  common  law  of  England, 
as  well  as  the  law  of  nature  and  nations,  the  king,  as  the  organ 
of  the  nation,  might  grant  them  in  propriety  to  an  individual, 
and  thus  destroy  the  right  of  the  people;  and  that  his  grant 
would  be  binding  on  the  people.  It  is  of  no  importance,  as  to  the 
validity  or  effect  of  the  grant  he  did  make,  whether  he  derived  his 
title  to  this  country  from  discovery  or  conquest.  In  either  case, 

VOL.  I.  B 


18  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

it  vested  in  him  in  absolute  propriety,  and,  by  the  laws  and  con- 
stitution of  England,  he  was  authorized  to  alienate  it,  as  he  saw 
proper,  without  reference  to  the  good  of  the  people,  or  the  will 
of  parliament.  He  would  have  had  this  right  on  the  general 
principles  of  national  law.  Vat.  101,  sec.  210.  His  grants,  even 
of  the  common  rights  of  his  subjects,  would  bo  binding  on  them ; 
and,  if  so,  how  much  more  binding  will  it  be  on  those  who  come 
in  under  the  very  grant,  and  have  recognized  it.  It  is  to  be  re- 
membered, that  this  is  not  a  question  between  the  people  of 
England,  claiming  that  their  agent  or  organ  had  exceeded  his 
powers,  but  it  is  a  question  raised  by  those  who  derive  their 
right  to  the  soil,  and,  of  course,  to  the  participation  of  the  rights 
founded  on  it  under  the  very  grant  which  is  now  sought  to  be 
circumscribed  or  destroyed. 

It  is  a  matter  not  clearly  settled,  how  the  king  acquired  his 
right  to  this  country.  Blackstone,  1  Com.  108,  supposes  that  he 
obtained  it  by  treaties,  or  the  right  of  conquest.  Smith,  in  his 
Hist,  of  N.  J.  8,  insists  that  it  was  acquired  by  the  right  of  dis- 
covery. The  right,  however  derived,  was  strengthened  by  the 
purchase  of  the  Indian  title,  which  was  made  by  the  proprietors. 
The  king  of  England  very  early  exercised  the  right  of  granting 
this  country.  In  1606,  king  James  I.  granted  this  province,  to- 
gether with  Virginia  &c.  by  patent,  to  Sir  Thomas  Gates  and 
others.  Smith's  Hist.  N.  J.  17.  This  patent  was  repealed  in 
1623.  It  remained  in  the  crown  until  March  12,  1664,  when 
king  Charles  II.  granted  it  to  his  brother,  the  duke  of  York. 
Smith's  Hist.  N.  J.  59.  On  June  24,  1664,  the  duke  of  York 
granted  it  to  Sir  George  Carterot  and  Lord  Berkley.  At  the 
date  of  this  grant,  the  eastern  part  of  Now  Jersey  was  in  pos- 
session of  the  Dutch,  who  had  made  considerable  settlements  in 
Bergen,  Essex,  Middlesex,  Monmouth,  and  Somerset.  In  Au- 
gust, 1664,  before  the  last  mentioned  grants  were  known  here, 
^Colonel  Nicholls,  the  royal  governor  of  New  York,  conquered 
it,  together  with  the  fort  on  the  Delaware,  at  Newcastle,  from 
•the  Dutch.  Smith,  in  his  Hist.  N.  York  29,  30,  31,  says,  it  was 
re-conquered  by  the  Dutch,  in  1673,  and  given  up  by  the  peace 
of  1674.  This  is  somewhat  doubtful.  Captain  Philip  Carteret, 
the  first  proprietary  governor,  with  the  first  settlers  under  Car- 
teret and  Berkley,  arrived  in  New  Jersey  in  the  summer  of 
1665,  and,  by  the  treaty  of  Breda,  in  1667,  New  Jersey  was  form- 


NOVEMBER  TEEM,  1821.  19 

Arnold  v.  Mundy. 

ally  ceded,  by  the  Dutch,  to  the  king  of  England.  This  gave 
rise  to  the  subsequent  grant,  made  on  the  29th  July,  1674,  by 
the  king  to  the  duke  of  York,  and  by  the  duke  to  Berkley  and 
Carteret.  Learning  &  Spicer  41  to  50.  Smith's  Hist.  N.  York  32. 
This  grant  is  to  receive  a  liberal  construction  in  favor  of  the 
grantees.  It  contains  the  words  "certain  knowledge,  "mere 
motion,"  and  "special  grace,"  and  it  purports  to  be  made  for  a 
valuable  consideration.  3  Cruise  567,  sec.  11,  12.  The  words 
of  the  grant,  also,  are  very  broad  and  comprehensive — "All  the 
lands,  islands,  soils,  rivers,  harbours,  waters,  fishings,  &c."  Learn- 
ing &  Spicer  4.  These  words  are  technically  apt  to  pass,  as  well 
the  soil  of  the  rivers  as  the  fisheries.  2  Black.  18,  Har.  L.  T. 
18,  33.  Dav.  150.  5  Com.  Dig.  (D  290).  It  is  abundantly  mani- 
fest from  the  cotemporaneous  history  of  England,  that  this  grant 
and  charter,  as  well  as  all  other  grants  and  charters  of  the  Amer- 
ican provinces,  were  framed  with  great  deliberation ;  wei-e  sub- 
mitted to  the  law  officers  of  the  crown,  and  every  word  well 
weighed  and  understood.  By  looking  at  other  grants,  it  will 
appear,  that  when  the  king  meant  to  reserve  the  right  of  fishery 
he  did  it  by  express  words.  It  is  so  in  the  grant  of  Maryland  to 
Lord  Baltimore,  1  Har.  tfc  M'Hen.  564.  These  charters  and 
grants  are  great  state  papers;  and  considering  them  as  such,  and 
referring  to  the  situation  of  England  at  the  time,  this  idea  is 
strengthened.  The  policy  of  the  crown,  as  well  as  that  of  the 
English  nation  at  that  time,  was  to  people  America  as  rapidly  as 
possible.  It  is  obvious,  that  these  grants  of  immense  territories 
were  designed  not  merely  for  the  benefit  of  favourites,  but  to  fos- 
ter, promote,  and  encourage  the  settlement  of  the  country.  Hence 
the  king  not  only  granted  the  territory  in  the  most  ample  and 
compi-ebensive  terms,  so  as  not  only  to  divest  himself  and  the 
people  of  England  of  all  propriety  in  the  soil  and  rivers,  but  also 
the  right  of  sovereignty  and  of  s«lf-government,  unrestricted  in 
all  particulars,  so  that  they  be  not  contrary  to  the  laws  of  Eng- 
land, but,  as  near  as  may  be,  conformable  thereto. 

At  this  time  it  was  well  known  that  much  discontent  prevailed 
in  England  among  those  who  considered  themselves  persecuted 
for  their  religious  opinions;  and  the  spirit  of  liberty,  which  had 
destroyed  the  sceptre  of  Charles  I.  and  brought  him  to  the  block, 
was  not  wholly  extinguished  by  the  restoration  of  his  son.  There 
were  still  many  gallant  and  patriotic  Englishmen  who  cherished 


20  NEW  JERSEY  SUPEEAIE  COURT. 

Arnold  v.  Mundy. 

the  sacred  flame  of  liberty,  and  who  viewed  the  prerogative  of 
the  crown,  in  the  hands  of  the  Stuart  dynasty,  as  dangerous  to 
the  rights  of  the  people;  and  who  detested  the  licentious  and 
tyrannical  conduct  of  one  brother,  and  dreaded  the  religious 
bigotry  of  the  other.  Admonished  by  the  fate  of  their  father, 
these  royal  brothers  might  wish  to  avoid  it,  and  instead  of 
repressing  the  spirit  of  emigration  which  had  then  seized  those 
who  were  remarkable  for  boldness,  enterprize,  and  attachment  to 
civil  and  religious  liberty,  they  might  have  had  the  wisdom  to 
hold  out  inducements  to  the  Hampdens  and  Crom wells,  if  any 
still  remained,  to  seek  their  fortunes  in  the  wilds  of  America, 
and  there  create  new  theatres  for  action. 

The  grant  to  the  duke  of  York  (Learning  &  Spicer  6)  not  only 
contains  the  most  ample  cession  of  the  domain  and  sovereignty 
of  the  country,  but  gives  him  the  right  of  interdicting  any  per- 
sons from  settling  that  he  may  see  proper.  The  grant  from  the 
duke  to  Berkley  and  Carteret  is  as  full  and  ample  as  the  grant  to 
him,  except  as  to  territorial  limits.  There  can  be  no  question, 
that,  at  that  period,  no  one  in  England  seriously  supposed  that 
this  grant  violated  the  rights  of  the  subject,  or  transcended  the 
prerogative  of  the  king.  It  was  not  supposed,  that  a  subject  of 
England,  as  such,  could  claim  a  right  in  New  Jersey,  hostile  to 
the  grant  made  by  the  king.  Could  he  have  set  up  the  pretences 
of  the  adverse  counsel,  that  the  king  held  the  colony  merely  as 
trustee  for  the  people,  and  that  a  grant  made  to  an  individual 
without  consideration,  and  for  favouritism,  was  void?  Could  ho 
have  set  up  the  common  right  of  fishery,  as  an  unalienable  right, 
vested  in  the  king  for  great  public  purposes?  and,  as  one  of  the 
people  of  England,  made  good  his  claim  to  the  waters  of  this 
wilderness.  The  very  laws  upon  which  his  claim  must  be  based 
had  already  sanctioned  the  cession  and  grant  of  this  country  to 
individuals.  It  was  no  longer  the  property  of  the  nation ;  their 
lawful  agent  had  alienated  it. 

It  is  manifest  that  our  ancestors,  who,  I  may  venture  to  assert, 
felt  as  ardent  a  love  of  liberty,  and  understood  their  rights  as 
Englishmen,  as  well,  at  least,  as  many  who  prate  about  the  rights 
of  the  people,  and  common  right,  and  other  imposing  terms,  had 
no  such  opinion.  These  men,  whose  love  of  civil  and  religious 
liberty,  led  them  to  abandon  the  delights  of  civilized  life,  the 
tombs  of  their  ancestors,  and  all  those  endearing  ties  which  bind 


NOVEMBER  TERM,  1821.  21 

Arnold  v.  Mundy. 

man  to  the  place  of  his  birth  to  encounter  the  privations,  hard 
ships,  and  dangers  of  settling  a  wilderness,  peopled  only  by  sav- 
ages, knew  well  the  rights,  the  powers,  and  privileges  of  the 
proprietors,  under  these  grants.  Before  crossing  the  Atlantic, 
they  ascertain  the  terms  upon  which  they  will  be  permitted  to 
settle  under  the  proprietors.  The  grants  and  concessions,  dated 
10th  February,  1664,  is  the  Magna  Cfiarta  of  New  Jersey,  and 
therein  the  settlers  stipulate  for  a  representative  government;  a 
free  passage  to  or  through  any  seas;  lands  for  wharves}  keys,  har- 
bours, &c.  and  that  they  shall  not  be  liable  for  trespasses  on  waste 
lands.  Smith's  Hist.  JV.  J.  163.  Learning  &  Spicer  20,  25,  sees. 
3,  6,  8.  In  1682,  the  colonial  legislature  resolved,  that  the  gov- 
ernment and  laws  of  New  Jersey  were  purchased  together. 
Smith's  Hist.  N.  J.  163.  In  1683,  they  published  their  funda- 
mental rights;  (76.153)  and,  in  1698,  they  re-published  them, 
containing  a  proviso,  that  nothing  therein  contained  should 
infringe  any  grant  or  charter  already  granted.  The  first  settlers 
made  their  own  terms,  and  when  we  find  them  treating  for  the 
right  of  navigation,  and  of  harbours,  &c.,  which  are  part  of  the 
jus  publicum,  upon  the  principles  of  all  laws,  and  securing  them 
by  contract,  and  silent  as  to  the  right  of  fishery,  it  furnishes  a 
strong  argument  in  favour  of  our  position,  the  more  especially,  as 
their  brethren  of  West  Jersey,  deriving  under  the  same  grant, 
actually  stipulate  for  the  right  of  common  fishery.  Learning 
&  Spicer  390. 

In  1676,  Lord  Berkley  sold  his  moiety  of  New  Jersey;  and 
in  1682  the  executors  of  Sir  George  Carteret  sold  his  moiety. 
In  1685,  the  duke  of  York,  to  whom  the  grant  had  been  made, 
became  king.  At  that  time,  the  province,  having  passed  out  of 
the  possession  of  the  courtiers  and  favourites,  and  increased  very 
rapidly  in  population  and  wealth,  became  an  object  of  jealousy 
to  the  government  at  home,  and  many  pretexts  were  used  to 
resume  the  government.  Smith's  Hist.  _ZV.  J.  65.  It  is  to  be 
remarked,  however,  that  even  then  it  was  never  suggested,  by 
those  who  were  fertile  in  devices  to  avoid  charters  and  patents, 
that  the  king  had  transcended  his  prerogative  in  making  the 
grant.  It  was  then  pretended  by  the  adherents  of  the  crown, 
as  our  adversaries  now  argue,  (and  indeed  it  is  the  main  pillar  of 
their  argument)  that  the  right  of  government,  although  lawfully 
conveyed  to  the  duke  of  York,  could  not  be  alienated  by  him 


NEW  JERSEY  SUPREME*  COURT. 


Arnold  v.  Mnndy. 


or  bis  alienees.  Smith's  Hist.  N.  J.  570.  Then  that  doctrine  was 
supposed  to  partake  of  the  arbitrary  nature  of  the  Stuart  prerog- 
ative, and  to  be  hostile  to  the  interests  of  the  people.  Hence  it 
•was  resisted  by  the  people  then  inhabiting  here,  and  gave  rise 
to  the  resolutions  of  1682,  1683,  and  1698,  already  quoted,  in 
which  the  rights  of  the  proprietors  are  distinctly  asserted.  It  is 
a  singular  position,  that  our  ancestors  coming  here  under  an  ex- 
press recognition  of  the  rights  of  the  proprietors  under  the  grant 
to  the  duke  of  York,  and  purchasing  part  of  the  very  lands 
passed  thereby,  could  destroy  or  circumscribe  the  rights  of  those 
under  whom  they  held.  It  would  be  analogous  to  a  tenant  deny- 
ing the  right  of  his  landlord. 

3.  Having  established,  as  is  submitted,  that  on  the  principles 
of  the  common  law  the  king  could  grant  the  soils,  rivers,  lands, 
and  fisheries  within  New  Jersey,  and  that,  by  express  words,  he 
did  grant  them  to  those  under  whom  the  proprietors  claim  title, 
it  remains  to  shew,  that  as  owners  of  the  rivers  and  soils,  inde- 
pendent of  the  grant  of  the  fishings,  the  proprietors  became 
entitled  to  a  several  fishery. 

Fresh  waters  belong,  in  propriety,  to  the  owners  of  the  soil  on 
each  side.  Har.  L.  T.  5,  7.  2  Black.  261.  Dav.  152.  4  Bur.  2162. 
This  doctrine  is  recognized  by  Chief  Justice  Kent,  in  3  Caines 
319,  and  by  Chief  Justice  Spencer,  in  17  John.  209.  In  these 
rivers,  the  right  of  fishing  is  annexed  to  the  soil,  and  passes  by  a 
grant  of  it,  and  is  recovered  by  the  description  of  land  covered 
with  water.  Har.L.T.S,!.  The  distinction  in  the  books  between 
salt  water  rivers,  navigable  rivers,  and  rivers  in  which  the  tide 
ebbs  and  flows,  and  fresh  water  rivers  not  navigable  rivers,  and 
rivers  in  which  the  tide  does  not  ebb  and  flow,  for  they  are  differ- 
ent expressions  for  the  same  thing,  is  local,  and  arises  altogether 
from  the  nature  of  the  rivers  in  England.  There  all  their  rivers,  * 
BO  far  as  the  tide  ebbs  and  flows,  are  salt,  and  so  far  navigable; 
and  those  in  which  the  tide  does  not  ebb  and  flow  are  fresh,  and 
not  navigable.  2  Con.  Rep.  4.  2  Bin.  476.  That  is  not  so  here. 
The  Delaware,  Susquehanna,  Schuylkill,  &c.  and  in  fact  all  our 
great  rivers,  are  navigable  beyond  the  influence  of  the  tide  and 
the  salt  waters.  The  doctrine  there  was  founded  on  the  nature, 
extent,  and  situation  of  their  rivers,  and  adapted  to  it ;  and  the 
grant  of  lands  on  salt  water  rivers,  bounding  on  the  river,  carried 
only  to  low  water  mark.  In  fresh  water  rivers,  the  same  words 


NOVEMBER  TERM,  1821.  23 


Arnold  v.  Mundy. 


in  a  grant  would  carry  to  thefilum  aquce.  This  was  the  rule  of 
construction.  But  even  in  salt  water  rivers,  the  grant  by  the  king, 
of  the  soil&c.  conveyed  also  the  right  of  fishery  as  an  incident.  In 
this  sense  is  to  be  understood  Har.  L.  T.  11,  15;  4  Bur.  2163; 
3  Jac.  L.  D.  82.  If  the  distinction  in  the  English  books  on  this 
subject  is  local,  it  may  be  questioned  whether  it  applies  here. 
Our  ancestors,  on  emigrating,  did  not  bring  with  them  the  whole 
body  of  the  common  law,  as  well  that  establishing  general  prin- 
ciples applicable  to  a  new  country,  as  that  founded  on  the  pecu- 
liar state  of  the  country  from  which  they  came.  They  brought 
the  common  law  purified  from  its  local  dross.  Every  thing  of  a 
mere  local  origin  was  left  on  the  other  side  of  the  ocean,  and  we 
have  gradually  substituted  in  its  place  a  local  common  law  of  our 
own.  Our  ancestors  brought  the  folk  law  merely,  as  contradis- 
tinguished from  the  jus  coronce  and  the  local  common  law  of  Eng- 
land. Besides  they  settled  this  country  under  royal  charters 
defining  their  rights,  or  under  grants  made  to  individuals,  which, 
in  many  respects  varied  from  the  principles  of  the  common  law, 
as  in  this  very  grant  of  New  Jersey  the  king  parted  with  many 
of  his  prerogative  rights  as  to  harbours,  ports,  rivers,  &c. 

By  the  grant  of  the  soil  of  a  navigable  river,  on  the  admitted 
principles  of  the  common  law,  a  right  of  several  fishery  passes. 
Har.  L.  T.  5,  7,  15,  33,  34.  2  Black.  39.  4  Bur.  2163.  5  Com. 
Dig.  Pischary.  A  right  of  several  fishery  is  in  concomitance 
with,  and  founded  on,  the  right  of  soil,  and  is  co-extensive 
with  it ;  and  whoever  has  the  right  of  soil  in  a  navigable  water 
has,  also,  the  right  of  several  fishery.  Under  the  grant  from  the 
proprietors,  offered  in  evidence,  the  plaintiff  acquired  a  right  of 
several  fishery  generally,  and  without  limitation,  co-extensive 
with  his  right  of  soil. 

2.  But  if  he  did  not  acquire  a  right  of  several  fishery  for  float- 
ing fish,  he  acquired  a  right  to  erect  a  local  fishery,  or  an  o}Tstery, 
within  the  limits  of  his  grant,  and  was  entitled  to  recover  for 
an  infringement  of  that  right.  Har.  L.  T.  18  to  23.  4  Mass. 
527.  This  doctrine  is  supported  by  decisions  in  our  sister  states. 
1  Swift.  341-2.  4  Mass.  527.  10  Mass.  210.  2  Bin.  475. 

The  right  of  several  fishery  exists  in  New  Jersey,  in  the  Dela- 
ware and  other  navigable  streams,  and  this  right  has  been  sanc- 
tioned by  a  decision  of  Chief  Justice  Kinsey,  at  the  Gloucester 
circuit.  It  is  recognized  and  protected  by  various  acts  of  the 


24  NEW  JEESEY  SUPEEME  COUET. 

Arnold  v.  Mundy. 

legislature.  The  fisheries  are  taxed  as  private  property,  distinct 
from  the  land,  and  above  a  hundred  are  now  enjoyed  on  the 
Delaware.  It  also  exists  in  Pennsylvania,  on  the  shores  of  Sta- 
ten  Island,  in  Virginia,  Maryland,  &c.  This  proves  that  there  is 
a  general  local  common  law  on  this  subject,  pervading  all  the 
states  where  the  waters  afford  sufficient  inducements  for  the 
cmners  of  the  banks  to  erect  fisheries. 

Whenever  the  soil  of  a  river  is  granted  by  express  terms,  or 
even  constructively,  it  becomes,  so  far  as  regards  the  right  of 
fishery,  a  private  river,  and  the  principles  of  the  common  law,  as 
to  private  or  fresh  water  rivers,  attach.  Whenever  the  soil  of  a 
river  passes,  by  grant  or  otherwise,  out  of  the  hands  of  the  sove- 
reign of  the  country,  it  becomes,  ipso  facto,  a  private  river  and 
the  subject  of  a  several  fishery.  How  can  rights,  which  are 
merely  accessary,  exist  in  the  hands  of  the  sovereign  after  he  has 
parted  with  the  principal!  Several  fishery  is  an  incident  to  the 
soil;  while  it  remains  the  property  of  the  people  the  common 
law  right  of  free  and  common  fishery  continues;  but  when  the 
soil  is  sold  or  conveyed,  the  incident  also  passes.  1  Rutherf.  92. 
This  doctrine  is  expressly  asserted  by  the  commissioners  ap- 
pointed by  this  state  to  treat  with  New  York  respecting  our 
eastern  boundary.  They  were  appointed  by  the  legislature;  re- 
ported their  proceedings  to  the  legislature ;  and  the  legislature, 
by  publishing  their  report  at  the  public  expense,  and  without 
comment,  have  adopted  their  reasoning;  and  it  becomes,  as  well 
from  that  circumstance  as  from  the  great  learning  and  talents  of 
the  commissioners  themselves,  entitled  to  very  great  weight  in 
our  tribunals.  It  fully  supports  this  proposition.  Report  of  Com- 
missioners 15.  The  proprietors,  also,  from  a  very  early  period 
down  to  the  present  time,  have  been  in  the  practice  of  granting 
the  soil  of  navigable  rivers.  On  the  trial,  many  such  grunts  were 
shewn,  and  they,  at  least,  prove  a  cotemporaneous  construction 
of  the  grant  under  which  they  held.  While  the  rivers  remain  in 
the  hands  of  the  sovereignty  of  the  country,  the  right  of  fishery 
therein  is  public  and  common ;  when  it  is  granted  to  an  individ- 
ual, it  becomes  a  several  fisherj*.  This  is  consistent  with  the  doc- 
trine of  the  natural  law,  as  laid  down  in  Rutherf.  91. 

The  jus  publicum  in  all  rivers  is  the  same.  The  jus  publicum 
is  the  right  of  navigation  ;  the  right  of  making  laws  for  the  con- 
servation of  fish  and  their  fry;  and  to  regulate  the  mode  and 


NOVEMBER  TERM,  1821.  25 

Arnold  v.  Mundy. 

right  of  taking  them.  Har,  L.  T.  22, 23,  36.  Lord  Hale  nowhere 
considers  the  right  of  fishery  as  a  part  of  the  jus  publicum,  prop- 
erly so  called.  This  doctrine  perfectly  harmonizes  private  rights 
with  public  rights. 

It  will  here  be  necessary  to  anticipate  some  of  the  arguments 
of  the  counsel  of  the  defendant,  that  they  may  be  apprized  of 
the  answers  that  will  be  relied  on. 

1.  It  has  been  contended,  and  no  doubt  will  be  again,  that 
the  right  of  fishery  is  a  royal  franchise  which  the  king  holds  for 
great  public  purposes,  in  trust  for  the  benefit  of  the  people,  and 
cannot,  from  its  very  nature,  be  conveyed. 

The  fallacy  of  this  position  consists  in  not  distinguishing 
between  the  different  kinds  of  fisheries.  Fisheries  are — 1.  Sev- 
eral. 2.  Free.  And  3.  Common.  2  Black.  39.  1.  The  right  of 
several  fishery,  as  already  shewn,  is  founded  on,  and  annexed  to, 
the  soil,  and  is  by  reason  of,  and  in  concomitance  with,  the  own- 
ership of  the  soil.  "When  the  soil  of  a  navigable  river  is  granted 
the  right  of  several  fishery  therein  begins.  2.  A  free  fishery  is 
altogether  different;  it  is  a  royal  franchise,  distinct  from  the  land 
and  founded  on  grant  or  prescription.  By  the  grant  of  a  free 
fishery,  the  right  of  fishery  only  passes,  the  right  of  soil  remains 
in  the  king.  2  Cruise  297,  sec.  70.  5  Com.  Dig.  290.  A  free  fish- 
ery separate  from  the  soil,  appropriating  not  the  land  but  the  fish- 
ery, might,  on  sound  principles  of  policy,  be  prohibited  in  every 
well  regulated  government.  If  permitted,  eveiy  part  of  the  Brit- 
ish channel  might  have  been  parcelled  out  among  courtiers  and 
favourites,  and  thus  the  ocean  itself  made  tributary  to  the  avar- 
ice of  man.  The  right  of  several  fishery,  however,  springing 
from,  and  connected  with,  the  possession  of  the  soil,  stood  on 
wholly  different  grounds.  It  gave  an  incentive  to  industry,  and 
would  benefit  the  public.  The  sound  rational  principle  on  which 
the  distinction  between  the  ownership  of  rivers  navigable  and  not 
navigable  rests,  is,  that,  as  to  the  latter,  a  subject  must  be  the 
owner  of  it,  and  may  be  of  the  former,  but  prima  facie  it  is  in 
the  king,  and,  until  granted,- he  holds  it  as  the  agent  of  the  peo- 
ple and  for  their  benefit;  and  it  is  public  and  subject  to — 3.  The 
right  of  common  of  fishery.  But  this  right  of  common  of  fishery 
continues  only  while  the  soil  remains  in  the  public.  But  there 
are  not  wanting  authorities,  among  those  already  cited,  to  prove 
that  the  king  may  grant  a  free  fishery.  But  the  position  now 


26  NEW  JEESEY  SUPEEME  COUET. 

Arnold  v.  Mundy. 

contended  for  is,  that  the  authorities  which  deny  the  right  of  the 
king  to  grant  a  fishery  in  navigable  waters,  when  properly 
understood,  apply  only  to  free  fisheries,  which  is  a  royal  franchise, 
and  not  to  several  fisheries.  This  distinction  reconciles  all  the 
seeming  contradictions  in  the  books. 

2.  That  the  King  was  prohibited  by  Magna  Charta  from  grant- 
ing a  fishery. 

The  16th  and  23d  ch.  of  Magna  Charta  are  relied  on  to  sup- 
port this  position.  Ch.  17th  is  expressly  stated  by  the  Mirror  to 
be  obsolete.  3  Cruise  297.  1  Cok.  Inst.  30,  37.  5  Jac.  L.  D.  4. 
This  section  is  considered  by  Lord  Hale  (Har.  L.  T.  7,  8,  9)  as 
designed  to  take  away  the  right  of  the  king  in  private  rivers,  an 
interest  of  pleasure  or  recreation,  which  he  enjoyed  by  the  writ  de 
defensione  riparian,  that  is,  to  put  the  rivers  in  defense,  to  bar  fish- 
ing or  fowling  till  the  king  had  taken  his  pleasure.  And  that  the 
23d  ch.  applies  to  weirs,  kidells,  and  obstructions.  liar.  L.  T.  9, 22. 

This  exposition  agrees  much  better  with  the  character  of 
Magna  Charta  than  Blackstone's.  Magna  Charta  proceeded 
from  a  struggle  between  the  barons,  bold,  turbulent,  rapacious, 
and  oppressive,  and  kings,  weak,  timid,  and  tyrannical.  Let  us 
not  be  the  slaves  of  mere  words.  Whatever  benefit  has  accrued 
to  the  liberties  of  the  world  from  Magna  Charta,  has  arisen 
more  from  chance  than  design.  The  barons  armed  themselves  not 
to  support  the  rights  of  the  people,  but  to  protect  their  own 
usurpations  upon  the  rights  of  both  monarch  and  people,  and,  in 
the  collision  between  the  two  oppressors,  some  principles  of  lib- 
erty were  struck  out.  It  was  a  mere  streamlet  issuing,  as  if  by  a 
miracle,  from  the  rock  of  tyranny,  struck  not  by  the  arm  of  in- 
spired patriotism,  but  by  a  casual  blow  of  the  sword  of  the  mailed 
baron,  in  the  attempt  to  deck  himself  in  the  robes  of  royalty. 
But  these  chapters  of  Magna  Charta  are  mere  statutes,  and  it  is 
held  in  Westminster-Hall,  that  none  of  the  statutes  of  England,  as 
such,  applied  to  the  colonies.  1  Salk.  666.  2  Ld.  Ray.  1274. 

We  hold  not  our  liberties  in  this  state  by  the  provisions  of 
Magna  Charta.  Every  freeman,  wherever  his  lot  may  bo  cast, 
will  turn  to  that  instrument  with  pride  and  satisfaction,  as  a 
noble  but  rude  and  incomplete  monument  of  the  liberties  of 
man.  It  is  the  corner-stone  of  the  liberties  of  Englishmen,  and 
the  first  land-mark  in  tracing  out  the  liberties  of  the  subject 
after  the  Norman  usurpation. 


NOVEMBER  TERM,  1821.  27 

Arnold  v.  Mnndy. 

But  the  history  of  liberty  in  this  state  is  happily  not  lost  in  tho 
recess  of  time.  It  is  to  be  found  in  the  grant  from  the  king  to 
the  duke  of  York,  and  the  grants  and  concessions  between  the 
proprietors  and  the  settlers,  and  the  bill  of  fundamental  rights. 
Our  ancestors  stipulated  for  their  own  rights,  and  built  up  a  great 
system  of  republican  liberty,  based  on  the  natural  rights  of  man 
and  protected  by  representative  government,  in  which  they  have 
interwoven  all  the  essential  principles  of  civil  and  religious  lib- 
erty; I  turn  to  it  with  pride  and  pleasure.  Learning  &  Spicer 
162-3,  sees.  16, 19.  Beside  it,  the  much  boasted  Magna  Charta  of 
England  dwindles  to  a  twinkling  star  in  the  galaxy  of  freedom. 
It  embodies  every  thing  worthy  of  preservation  in  Magna  Charta, 
and  was  the  most  perfect  system  of  civil  and  religious  liberty 
existing  in  the  world  at  that  period.  It  is  the  foundation  of  our 
present  republican  system,  lopped  of  the  overshadowing  branches 
of  royalty,  but  the  trunk  remains  entire  and  vigorous.  On  it  has 
been  engrafted,  the  sovereignty  of  the  people,  equal  laws  and 
equal  rights,  and,  to  this  day,  the  graft  is  nurtured  by  the  sap 
and  life-blood  of  the  parent  stock.  These  form  the  Magna  Charta 
of  New  Jersey.  To  trace  our  liberties  to  Magna  Charta  may 
indeed  gratify  a  feeling  akin  to  that  of  pride  of  ancestry,  but  it  is 
wholly  deceptive.  In  all  the  struggles  between  the  people  and 
the  pi-oprietors,  on  the  one  side,  and  the  court  party,  on  the 
other,  during  the  proprietary  government,  and  after  the  surren- 
der, between  the  people  and  the  royal  governors,  it  will  be 
found  that  the  patriots  of  the  day  constantly  refer  to  the  grants 
and  concessions,  and  the  fundamentals,  as  the  basis  of  their 
rights.  Learning  &  Spicer,  passim.  Indeed,  the  collection  of  the 
original  documents,  so  often  referred  to,  made  by  Learning  & 
Spicer,  was  occasioned  by  the  desire  of  the  legislature  to  rescue 
from  oblivion  documents  so  essential  to  their  just  rights  and  liber- 
ties. Besides,  these  chapters  of  Magna  Charta  are,  on  the  face 
of  them,  local  and  confined  to  England,  and  cannot,  in  fair  rea- 
soning, be  extended  to  the  rivers  in  America.  With  the  same 
propriety  it  might  be  insisted,  that  the  provisions  contained  in 
Magna  Charta  respecting  game,  forests,  &c.  were  applicable. 
The  legislature  of  New  Jersey,  at  a  very  early  period,  enacted 
similar  laws  respecting  the  obstruction  of  navigable  waters.  Pat- 
erson  15. 

3.  That,  by  the  surrender  made  by  the  proprietors  to  queen 


28  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

Anne,  on  April  15,  1702,  tho  right  of  fishery  in  the  navigable 
waters  of  New  Jersey,  which,  if  it  passed  to  the  proprietors  at 
all,  passed  as  an  incident  to  sovereignty,  became  re-annexed  to 
tho  crown.  If  the  former  propositions  contended  for  are  sup- 
ported, there  is  no  force  in  this  argument;  because,  if  the  king 
had  a  right  to  grant  soil  covered  with  water,  and  fisheries,  and 
did  grant  them,  they  became  severed  from  tho  sovereignty,  and 
could  not  be  re-annexed  but  by  terms  as  broad  and  comprehensive 
as  those  by  which  they  were  granted.  In  the  grant,  the  water, 
soil,  and  fisheries  are  passed  in  express  terms,  and  not  construc- 
tively or  as  incident  to  the  sovereignty,  and  it  cannot  be  gravely 
pretended  that  it  varies  it,  because  they  were  conveyed  by  tho 
same  instrument.  This  argument  is  a  petitio  principii;  it  assumes 
the  very  point  in  debate,  and  which  is  denied  by  us.  A  refer- 
ence to  the  memorial  of  the  proprietors,  which  preceded  tho 
surrender,  and  the  surrender  itself  completely  dispels  this  idea. 
In  the  memorial,  the  proprietors  expressly  separate  the  idea  of 
government  and  property.  Learning  &  Spicer  607.  They  sur- 
render merely  the  powers  of  government.  76.  613-4.  It  was 
accepted  as  such.  Ib.  617.  By  their  memorial,  the  proprietors, 
previous  to  the  surrender,  stipulate  for  the  soils  and  lands  of  the 
provinces  and  the  quit  rents,  (76.  589,  sec.  1)  which  is  granted. 
76.  594.  That  the  twenty-four  proprietors  may  be  lords  of  the 
soil  &c.  (76.  590,  sec.  9)  which  is  granted.  76.  595.  That  all 
lands,  goods,  and  chattels  of  traitors,  felons,  deodands,  fugitives, 
and  persons  outlawed,  waifs,  estrays,  treasure-trove,  mines  and 
minerals,  royal  mines,  wrecks,  royal  fish  that  shall  be  found  or 
taken  within  East  Jersey,  or  by  the  inhabitants  thereof  within 
the  seas  adjacent,  to  remain  to  the  proprietors,  with  all  the  other 
privileges  and  advantages,  as  amply  as  in  the  grant  and  confirma- 
tion of  March  14, 1682.  76.  590,  sec.  13.  Tho  lords  of  the  council 
of  trade  and  foreign  plantations,  who  had  the  assistance  of  all  tho 
great  law  officers  of  the  crown,  in  answer  say,  that  this  may  be 
reasonable,  except  as  to  the  goods  and  chattels  of  traitors,  which 
are  matters  of  state ;  nor  can  right  accruing  to  the  proprietors 
from  the  seas  adjacent  be  well  circumscribed  &c.  76.  59G.  This 
memorial,  and  the  answer  and  surrender,  are  to  be  considered  as  a 
treaty  between  tho  proprietors  and  tho  queen,  and  are  to  be  taken 
in  pari  materia.  The  proprietors  knew  that  they  held  the  right 
to  treasure-trove,  royal  fish,  &c.  as  incident  to  the  grant  of  sov- 


NOVEMBER  TERM,  1821.  29 

Arnold  v.  Mundy. 

ereignty,  (1  Black.  299)  and,  unless  provided  for  by  express  stipu- 
lation, it  would  again  vest  in  the  crown  on  the  surrender  of  the 
sovereignty.  The  lords,  to  whom  the  memoi'ial  was  addressed, 
admit  that  the  right  of  the  proprietors  to  the  seas  adjacent 
could  not  be  well  circumscribed,  so  far  as  they  passed  by  the 
king's  grant,  "westward  of  Long  Island,  bounded  on  the  east  hy 
the  main  sea,  and  hath  on  the  west  Delaware  bay  or  river,  and 
extending  southward  to  the  main  ocean,  as  far  as  Cape  May,  at 
the  mouth  of  Delaware  bay."  Learning  &  Spicer  10.  So  far, 
then,  as  these  limits  extended  the  proprietors  remained  lords 
of  the  soil,  and  their  rights  could  not  be  well  circumscribed,  is 
the  etrong  language  of  the  lords  of  the  council  of  trade  and  for- 
eign plantations,  and  may  be  considered  as  the  opinion  of  the 
great  law  officers  of  the  crown,  as  they  were  constantly  applied 
to  by  the  board  of  trade  in  all  important  matters. 

But  the  proprietors,  as  sovereigns,  by  the  law  of  nations  and 
of  England,  were  proprietors  of  the  sea  to  the  extent  of  three 
leagues  from  the  shore,  and,  as  such,  lords  of  the  soil  covered 
with  water.  But  this  right  they  held  as  sovereigns,  not  as  lords 
of  the  soil,  and  when  they  surrendered  the  sovereignty  it  passed 
to  the  crown.  By  the  declaration  of  independence,  this  right 
vested  in  the  people  of  New  Jersey;  previous  to  the  surrender, 
the  right  of  granting  a  free  fishery  within  this  three  leagues  was 
in  the  proprietors ;  after  the  surrender,  and  until  the  declaration 
of  independence,  in  the  crown;  and  since,  in  the  people  of  New 
Jersey.  No  grant  of  a  free  fishery  has  ever  been  made  within 
these  waters,  and  none  can  now  be  made,  but  by  the  legislature 
of  New  Jersey.  That  they  have  the  right  so  to  do,  upon  the 
principles  of  the  common  law,  I  think  has  been  already  shewn. 
The  right  of  the  proprietors,  as  to  the  soil,  and  every  thing  else 
that  passes  by  the  grant  to  the  duke  of  York  untouched  by  the 
surrender,  was  not  affected  by  the  Revolution.  That  glorious 
event  found  them  lords  of  the  soil,  and  it  left  them  such.  It  was 
not  intended  to  take  away,  but  to  secure,  rights. 

2.  But  even  if  the  court  should  be  of  opinion,  that  the  soil  of 
the  rivers  below  low  water  mark  and  the  right  of  several  fishery 
were  not  capable  of  being  granted,  yet  we  contend,  that  the  plain- 
tiff, by  gathering,  or  purchasing,  and  planting  the  oysters  upon 
land  which  he  claimed,  and  bestowing  his  own  labour  upon 
them,  and  staking  them  off,  thereby  shewing  that  he  did  not 


30  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

throw  them  into  the  water  to  abandon  them,  acquired  a  right 
therein  which  is  protected  by  law,  and  will  enable  him  to  main- 
tain an  action  against  any  one  who  disturbed  him  in  the  enjoy- 
ment thereof.  He  acquired  such  right  upon  the  principles  of  the 
natural  law;  (1  Rutherf.  91)  upon  the  principles  of  the  civil  law  ; 
(Vattel  114,  sees.  250-1;  Domat.  475,  sees.  3,  4,  7,  9;  280,  sees.  24, 
27,  28,  29)  upon  the  principles  of  the  common  law ;  (2  Black. 
8,  9,  391,  392,  402 ;  3  Chitty's  C.  L.  359 ;  5  Esp.  #.  62 ;  1  Camp. 
309)  and  by  the  law  of  New  Jersey,  1  Pennington  397.  The 
oysters  belonged  to  him  before  they  were  planted ;  and  placing 
them  in  a  navigable  water  congenial  to  their  growth  and  suste- 
nance, accompanied  with  .every  indicia  of  ownership,  cannot  be 
considered  as  divesting  him  of  any  rights  previously  vested. 
The  oyster  is  a  fixture,  and  will  not  remove  from  the  place 
where  it  is  deposited.  If  a  whale  is  captured  and  left  within 
the  tide  waters  no  man  has  a  right  to  take  possession  of  it.  So, 
if  floating  fish  are  caught  and  placed  in  a  car.  So,  also,  of  a  piece 
of  timber  secured  from  being  drifted  off  by  the  tide ;  the  right 
of  the  original  owner  remains.  Every  man  may  deposit  his 
goods  in  the  highway.  He  may  thereby  subject  himself  to  an 
action  or  indictment  for  a  nuisance,  but  he  does  not  lose  his 
right  of  property.  In  no  case  does  a  man  lose  a  right  of  pro- 
perty vested  in  him  by  the  principles  of  law,  by  placing  it  in  a 
public  highway  or  a  navigable  water  subject  to  the  ./us  publicum. 
Upon  these  principles,  it  is  respectfully  submitted,  that  the 
nonsuit  ought  to  be  set  aside,  and  a  new  trial  awarded. 

Wood,  in  answer. — The  main  question  in  the  present  case  is, 
whether  the  proprietors  have  a  right  to  grant  a  several  fishery 
in  a  navigable  river,  to  the  exclusion  of  the  right  of  common 
fishery  in  the  citizens  generally?  The  right  of  the  citizens  has 
always  been  used,  and  the  court  must  see  their  way  clear  before 
they  will  attempt  to  deprive  them  of  it. 

We  contend,  that  the  right  of  the  soil  in  navigable  rivers,  and 
the  sea  at  the  distance  of  three  leagues  from  the  shore,  and  the 
right  of  jurisdiction  therein,  with  the  exclusive  right  to  what 
are  called  royal  fish,  are  vested  in  the  state,  the  sovereign  power, 
as  a  part  of  the  prerogative  of  the  sovereign  power ;  and  that 
the  citizens  have  a  common  vested  right  of  fishery  therein  ;  and, 
secondly,  that  if  the  above  rights,  ascribed  to  the  state,  be  in  the 


NOVEMBER  TERM,  1821.  31 

Arnold  v.  Mundy. 

proprietors,  they  hold  them  subject  to  the  common  right  of  fish- 
ery of  the  citizens  at  large,  of  which  they  cannot  deprive  them. 

In  establishing  these  propositions,  it  will  be  necessary  to  con- 
sider, what  are  the  rights  of  the  king  of  England,  in  relation  to 
these  subjects.  By  virtue  of  his  prerogative,  he  has  the  allodium 
of  the  soil  in  navigable  rivers  and  the  sea,  as  above  mentioned, 
with  an  exclusive  right  to  royal  fish.  His  subjects  have  a  com- 
mon of  piscary  therein,  which  is  a  vested  legal  right,  and  may 
be  pleaded.  These  rights  of  the  king  are  part  of  the  public 
domains,  vested  in  him  for  public  purposes.  The  king  cannot 
transfer  them  to  a  private  individual  for  a  private  purpose,  much 
less,  by  attempting  to  do  so,  can  he  destroy  the  common  right  of 
fishery,  the  vested  interest  of  the  subject.  This  doctrine  is  not 
peculiar  to  the  common  law.  It  is  the  doctrine  of  the  civil  law, 
which  is  the  basis  of  the  codes  of  modern  Europe,  and  which 
goes  much  farther.  Coop.  Justin.  67,  68,  lib.  2,  tit.  1,  sees.  1,  2,  3. 
Positions  supporting  this  doctrine  are  frequently  to  be  met  with 
in  treatises  on  national  law.  Vattel  11,  book  1,  chap.  3,  sec.  34; 
117,  book  1,  chap.  21,  sees.  260,  261. 

These  doctrines  apply  with  more  force  to  England.  Their 
government  is  a  limited  monarchy;  their  king  is  only  a  branch, 
and  the  executive  branch,  of  the  sovereign  power.  Such  a  power 
in  the  king,  as  is  contended  for  on  the  part  of  the  plaintiff,  which 
is  in  its  nature  legislative,  is  altogether  heterogeneous  and 
destructive  of  the  harmony  and  order  of  the  British  constitution. 
Their  parliament,  alone,  can  have  the  right  of  transferring  the 
public  domains  of  the  nation.  .The  king  may  grant  his  private 
property,  his  ordinary  revenue,  lands  vested  in  him  upon  feudal 
principles,  but  not  the  public  property.  Magna  Charta,  with 
Lord  Coke's  commentary  upon  it.  1  Beeves'  Hist.  234.  Chitty 
on  Fisheries.  1  Esp.  Dig.  part  2,  270.  2  Black.  Com.  39.  Bac. 
Abr.  tit.  Prerogative,  book  3.  3  Cm.  297.  Willes  268.  Warren 
v.  Matthews,  6  Mod.  73.  The  king  could  not  grant  the  tem- 
poralities of  the  church,  which  are  in  him,  before  the  18th 
Edward  III.  1  Black.  Com.  282.  The  authorities  cited  by  the 
plaintiff's  counsel  to  prove, that, upon  the  principles  of  national 
law,  the  public  waters  may  be  appropriated,  only  prove  that  they 
may  be  appropriated  by  a  nation,  to  the  exclusion  of  others. 
They  do  not  touch  the  question,  whether  a  king  may  appropriate 
them  to  the  exclusion  of  his  subjects?  It  is  true  the  Norman 


32  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

kings  usurped  this  power  of  transferring  the  public  waters  to 
private  individuals,  their  favourites;  but  this  power  was  re- 
strained by  Magna  Charta,  the  great  object  of  which  was  to 
restore  Saxon  liberty.  Black.  Tracts,  Introduction  to  Magna 
Chartd  289.  The  reason  of  allowing  such  grants  of  Magna  Charta 
to  prevail,  as  were  made  prior  to  the  reign  of  John  and  in  the 
reign  of  Henry  II.  was  no  doubt  because  such  rights  were  vested 
in  the  hands  of  innocent  alienees,  and  the  barons  of  those  da}*s 
were  moderate  in  the  work  of  reformation.  Those  grants  made 
prior  to  Magna  Charta,  and  allowed  by  it,  are  no  doubt  the 
foundation  of  all  the  several  fisheries  and  exclusive  ownerships 
of  navigable  waters  in  England,  which  are  now  claimed  by  pre- 
scription and  proved  by  immemorial  usage,  which  presupposes 
such  original  grant.  Instances  of  abuse  may  have  occurred  since, 
which  are  now  supported  in  that  way.  The  case  in  Dav.  Rep. 
is  a  mere  dictum  of  the  judges,  as  to  the  law  in  Ireland,  and  in 
the  worst  times  of  English  jurisprudence.  The  other  authorities 
cited  by  the  plaintiff's  counsel  furnish  cases  of  prescription  only. 

But  we  are  told  the  king  holds  the  public  waters,  not  as  a  part 
of  his  prerogative,  and  unalienable,  but  as  having  the  allodium 
of  the  soil  of  England  on  feudal  principles.  It  is  clear,  however, 
that  he  holds  by  virtue  of  his  prerogative.  2  Black.  Com.  39. 
6  Com.  Dig.  tit.  Prerogative  55,  (Z))  80.  The  queen  of  England 
is  entitle  to  dower  upon  the  demise  of  the  king,  and  though 
an  alien.  1  Black.  Com.  223,  231.  If  navigable  waters  are  not 
vested  in  him  as  the  property  of  the  nation,  and  under  his  pre- 
rogative, for  public  purposes,  she  would  be  entitled  to  dower  in 
them.  Free  fishery  is  a  franchise,  or  branch  of  the  king's  pre- 
rogative. 2  Black.  Com.  If  the  king  did  not  hold  the  soil  itself 
by  virtue  of  his  prerogative,  a  right  granted  out  of  it  could  not 
be  considered  a  franchise. 

The  feudal  law  was  introduced  by  William  the  conquero** 
Admit  that  the  Norman  kings  pretended  to  claim  the  sea  and 
navigable  rivers  upon  feudal  principles,  as  their  private  property, 
yet  the  Saxon  kings  held  it  as  a  part  of  the  prerogative ;  (Bac. 
Abr.  Prerogative  B  3)  and  Magna  Charta  revived  the  Saxon 
doctrine  and  put  an  end  to  the  Norman  usurpation.  If  we  were 
to  admit  that  the  kings  of  England,  both  before  and  since  Magna 
Charta  held  the  sea  and  navigable  rivers  as  private  transferable 
property;  yet  they  held  it  subject  to  the  common  right  of  fishery 


NOVEMBER  TERM,  1821.  33 

Arnold  v.  Mundy. 

in  the  subject,  which  is  a  vested  right,  and  may  be  pleaded.  1 
Pen,  Rep.  391.  Post  v.  Man,  1  South.  61.  Richardson  v.  the 
Mayor  of  Oxford,  2  H.  Black.  182.  Har.  L.  T.  11,  19,  20.  4 
Term  Rep.  437.  To  destroy  the  vested  legal  right  would  be  the 
highest  effort  of  legislation.  A  king  of  England,  upon  the  prin- 
ciples of  the  British  constitution,  cannot  do  it.  In  Hargrave  it 
is  admitted,  that  the  king  cannot,  by  alienation,  destroy  the  jus 
publicum,  and  that  the  common  right  of  fishery  is  a  part  of  the 
jus  publicum.  When  he  tells  us,  then,  that  the  king  may,  by 
alienation,  destroy  this  common  right  of  fishery,  it  only  proves 
that  the  author  is  inconsistent  with  himself.  The  construction 
put  upon  Magna  Charta,  in  Hargrave,  is  opposed  to  all  the 
authorities  upon  that  subject  above  cited.  It  supposes  the  barons 
of  Runnymede  were  anxious  to  put  an  end  to  royal  encroach- 
ment, by  prohibiting  the  subject  from  the  right  of  fishing,  and 
yet  they  left  it  in  the  power  of  the  king  to  defeat  their  right  at 
any  time,  and  to  any  extent,  by  merely  granting  the  soil  to  his 
favourites,  an  impotent  effort  which  was  unworthy  of  them. 

Having  ascertained  the  right  and  powers  of  the  king  over  tho 
navigable  waters  of  England,  it  is  easy  to  shew  that  he  possessed 
the  same  rights  and  powers,  and  no  others,  over  the  public  navi 
gable  waters  of  this  country.  England  claimed  North-America 
by  right  of  prior  discovery.  The  soil,  on  the  principles  of  the 
British  law  and  constitution,  vested  in  the  king,  and  for  the  pur- 
pose of  being  parcelled  out  among  his  subjects.  The  English 
government  could  only  hold  it  for  the  purpose  of  being  settled. 
Vattel  99,  book  1,  chap.  18,  sees.  207,  208.  The  people  emi- 
grating under  the  duke  of  York  to  America,  brought  with  them 
all  the  laws  and  rights  of  Englishmen,  except  such  as  were  ren- 
dered inapplicable  by  the  change  of  their  local  situation.  1  BL 
Com.  107.  If  the  king  had  retained  immediate  dominion  over 
this  country,  instead  of  gi-anting  it  to  the  duke  of  York,  he  would 
have  transferred  the  soil  to  the  inhabitants,  who,  of  course,  would 
take  the  same  rights  and  interests  in  the  adjacent  navigable 
waters  as  in  England.  His  having  owned  all  the  soil,  would  give 
the  king  no  greater  power  over  the  navigable  waters.  Suppose 
a  manor  in  England,  through  which  a  navigable  river  flows, 
should  revert  to  the  king,  and  he  should  parcel  it  out  again  to 
his  subjects,  they  would  take  the  same  rights  as  before  in  the 
navigable  waters. 

VOL.  i.  o 


34  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mnndy. 

It  is  said,  the  people  migrating  here  brought  with  them  politi- 
cal, but  not  municipal,  rights;  and  that  the  provision  on  this  sub- 
ject, in  Magna  Charta,  was  merely  local.  On  the  contrary,  they 
brought  civil,  as  well  as  political  rights.  Constitution  of  N.  J. 
Smith's  Hist.  N.  J.  291.  8  Cranch  242.  1  Mass.  T.  E.  60,  61. 
Laws  restraining  the  power  of  the  king,  more  especially  on  nav- 
igable waters  which  supplied  the  inhabitants  of  a  wilderness  with 
food,  were  all  important  to  them,  and  peculiarly  applicable  to 
their  situation..  But  the  king  caused  to  be  created  proprietary 
governments  here,  by  the  grant  to  the  duke  of  York.  In  the 
construction  of  this  charter,  we  are  to  consider — 1.  What  the 
king  had  a  right  to  grant;  and — 2.  What  he  intended  to  grant.  1. 
It  is  manifest  he  could  give  to  the  duke  of  York,  and  his  assigns, 
no  greater  right  and  power  over  the  navigable  waters  here  than 
he  himself  would  have  possessed ;  and,  if  the  words  of  the  grant 
are  more  extensive,  all  beyond  his  legitimate  right  is  absolutely 
void.  As  he  could  only  possess  a  right  in  these  navigable  waters, 
subject  to  the  common  right  of  fishery  of  the  inhabitants,  which 
was  unalienable,  the  duke  of  York,  and  all  claiming  under  him, 
would  take  the  right  of  the  king,  subject  to  the  same  restriction ; 
— but  2.  The  king  did  not  intend  to  grant  to  the  duke  and  his 
assigns,  as  an  individual,  an  Exclusive  right  of  fishery  in  these  navi- 
gable waters.  In  the  construction  of  this  charter,  we  should  con- 
sider it  as  a  great  state  paper,  not  to  be  confined  within  the  petty 
trammels  of  a  mere  private  conveyance.  The  grant  is  not  made 
to  him  as  an  individual,  but  as  a  qualified  sovereign,  created  so 
by  the  same  instrument,  and  thereby  vested  with  a  qualified  sov- 
ereignty over  the  country.  He  puts  the  duke  in  his  place,  with 
his  powers,  and  to  hold  the  territory  for  the  same  purposes  that 
he  held  it;  the  soil  to  be  parcelled  out  among  emigrants;  the 
navigable  waters  to  be  used  by  those  emigrants  for  navigation 
and  fishing.  He,  therefore,  gives  the  duke  the  soil  and  rivers, 
and  all  royalties,  with  the  powers  of  government,  to  bo  exercised 
according  to  the  laws -and  statutes  of  the  realm  of  England. 
Admitting,  for  a  moment,  the  abstract  power  of  the  king  to 
make  an  exclusive  grant  of  fishery  to  an  individual,  in  navigable 
•  waters,  yet,  in  the  present  case,  he  granted  to  the  duke  of  York, 
as  sovereign  over  them,  to  hold  them  as  he  held  them,  with  a 
.  common  right  of  fishery  in  the  settlers.  The  grant  of  the  duke 
.to  Berkley  and  Cartoret,  and  the  subsequent  grants,  will  receive 


NOVEMBER  TERM,  1821.  35 

Arnold  v.  Mundy. 

the  same  construction.  Hence  the  people  here  always  exercised 
a  common  right  of  fishery.  1  Allinsorfs  N.  J.  Laws  57,  preamble. 
Learning  &  Spicer  368,  369,  371,  129,  sec.  6. 

It  is  said,  this  was  a  conquered  country :  be  it  so.  This  would 
give  the  king  no  greater  power  over  his  British  subjects;  he 
conquered  with  their  arms.  Vattel  391,  book  3,  chap.  13,  sec. 
202.  Smith's  Hist.  N.  J.  119.  The  country,  however,  was  not 
conquered,  but  retaken  from  the  Dutch. 

It  is  said  in  the  grant  to  Lord  Baltimore,  (1  Harris  and 
M'Henry  564)  there  is  an  express  reservation  of  the  right  of 
fishery  to  the  inhabitants  of  England  and  Ireland.  It  might 
have  been  doubted,  whether  the  right  of  fishery  would  have 
extended  to  them,  and  was  not  confined  to  the  inhabitants  of 
Maryland,  But  why  was  there  no  reservation  in  favour  of  the 
latter?  Not,  surely,  because  it  was  intended  they  should  be  de- 
prived of  it,  but  because  it  was  clear  they  would  have  had  a  right, 
without  a  reservation  in  their  favour.  The  interference  is  clearly 
in  our  favour,  notwithstanding  the  opinion  of  Mr.  Dulaney. 

It  is  said,  that  all  the  ramparts  of  the  people's  rights  are  to  be 
found  in  the  concessions  and  fundamental  constitutions,  and  that 
in  the  disputes  before  the  surrender  to  queen  Anne,  the  people 
always  appealed  to  them.  It  is  manifest  those  provisions  were 
merely  precautionary,  intended  to  operate  upon  the  local  govern- 
ment. If  Charles  had  intended  a  despotism  here,  bis  grantee  and 
his  successors  would  have  pursued  the  plan.  See  Mr.  Walsh's 
Appeal,  on  that  subject.  These  provisions  would  have  been  nu- 
gatory if  they  were  not  in  pursuance  of  the  original  charter.  They 
could  not  otherwise  have  bound  the  king,  and,  of  course,  would 
not  have  been  appealed  to.  The  duke  of  York  and  his  succes- 
sors, the  proprietors,  having  held  these  navigable  waters  subject 
to  the  common  right  of  the  people,  in  the  quality  of  limited 
sovereigns,  vested  with  the  prerogatives  of  the  king,  in  the  sur- 
render to  queen  Anne,  gave  back  all  their  rights  and  powers 
over  those  waters.  This  surrender  was  made  because  the  pro- 
prietors had  no  right  of  government  strictly.  Learning  &  Spicer 
613.  Sac.  Abr.  tit.  Courts  Palatinate.  That  their  rights  over 
navigable  waters  were  surrendered,  is  proved — First,  impliedly: 
because  if  the  king,  as  already  shewn,  could  not  make  such 
grants  to  an  individual  for  a  private  purpose,  the  moment  the 
great  public  object  of  the  grant  ceased,  which  was  the  creation 


06  NEW  JERSEY  SUPEEME  COURT. 

Arnold  v.  Mundy. 

of  a  qualified  local  government  lor  the  settlement  and  regulation 
of  the  country,  the  rights  over  these  waters  reverted  to  the  king. 
Secondly,  by  express  words  they  surrender  all  powers,  authori- 
ties, and  privileges  of  and  concerning  the  government.  Learning 
<b  Spicer  618.  Privilege  is  an  appropriate  technical  term  to  con- 
vey the  idea  of  their  rights  under  the  prerogative,  and  was  so 
understood  by  the  proprietors.  Learning  &  Spicer  590.  It  is 
objected,  that  the  proprietors,  in  their  previous  negotiations, 
claimed  all  their  rights  in  the  sea.  So  they  made  many  other 
claims  which  were  eventually  abandoned,  and  there  would  have 
been  in  the  surrender  a  reservation  of  the  claim,  if  it  had  not 
been  abandoned.  If  these  rights  are  not  surrendered  no  other 
royalties  are :  such  as  waifs,  estrays,  forfeitures,  felons'  goods, 
&c.  Yet  the  queen  understood  they  were  surrendered.  (See  her 
instructions  to  Cornbury  about  forfeitures.  Learning  &  Spicei 
627) — But  we  now  come  to  our  second  proposition. 

Suppose  these  rights  over  navigable  waters,  which  the  pro- 
prietors possessed,  were  not  surrendered.  Suppose  further,  that 
the  king  possessed,  and  the  proprietors,  while  clothed  with  the 
powers  of  government,  possessed  the  right  of  destroying,  by 
alienations  of  the  soil  to  individuals,  the  common  right  of  fishery 
of  the  people  at  large.  Such  a  right  would  manifestly  be  a  pow- 
erful act  of  sovereignty.  It  would  be  a  strong  high-handed  exer- 
cise of  legitimate  arbitrary  power  against  moral  right,  and  not 
an  exercise  of  power  naturally  and  fairly  inherent  in  the  right 
possessed.  When  the  proprietors,  therefore,  surrendered  the 
government,  if  they  retained  their  rights  in  the  navigable  waters 
subject  to  the  common  rights  therein  of  the  people,  when  they 
ceased  to  be  clothed  with  the  powers  of  government  and  sunk 
to  the  condition  of  common  individuals,  they  could  no  longer 
exercise  the  high  sovereign  act  of  defeating  the  rights  of  the 
people  in  the  navigable  waters,  but  they  and  their  alienees 
must  hold  them  subject  to  such  rights.  It  has  been  said,  that 
whether  the  king  had  a  right  or  not  to  grant  these  several  ex- 
clusive fisheries  in  navigable  rivers  he  did  in  fact  grant  them, 
and  the  proprietors  have  enjoyed  them  under  the  grant,  and  it 
is  now  too  late  to  disturb  them.  I  have  already  shewn  that  the 
king  made  no  such  grant  j  but  if  he  had,  and  the  proprietors  had 
illegally  enjoyed  the  possession  under  his  grant,  it  would  not 
avail  them.  Stationers'  Company  v.  Carnan,  2  Black.  Hep. 


NOVEMBER  TERM,  1821.  37 

Arnold  v.  Mundy. 

1004.  7  Mod.  108.  It  is  notorious,  that  the  proprietors  have 
never  exercised  such  a  right,  but  the  people  have  been  in  the 
constant  immemorial  practice  of  using  all  the  public  waters  for 
fishing  and  taking  oysters.  It  is  said,  that  these  oysters  were 
planted  by  the  plaintiff,  and  that  he  has  a  right  to  them  though 
deposited  in  a  public  river,  and  that  they  are  different  from  run- 
ning fish.  But  there  is  no  such  distinction.  Pen.  Reports  391. 
Richardson  v.  Mayor  of  Oxford,  2  H.  Black.  182.  Besides,  in 
the  present  case,  the  plaintiff  threw  his  oysters  on  a  natural 
oyster-bed,  when  the  defendant  unquestionably  had  a  right  to 
take  oysters.  The  doctrine  above  contended  for  does  not  inter- 
fere with  the  fisheries  on  the  Delaware,  where  the  owners  possess 
the  exclusive  right  of  haul  upon  the  adjacent  shores. 

Scott,  on  same  side. — It  was  incumbent  on  the  plaintiff  to  shew 
a  title.  The  possession  of  unenclosed  premises  is  necessarily 
according  to  the  right.  Arnold  never  held  adverse  or  exclusive 
possession,  and  the  act  of  throwing  oysters  on  the  flat,  so  far 
fr.om  being  considered  an  act  of  possession,  has  been  adjudged 
by  this  court  an  abandonment  of  them  to  the  common  mass.  1 
Pen.  391,  395.  Possession,  then,  out  of  the  question,  we  must 
return  to  the  inquiry  of  title,  and  here  the  title  to  the  farm 
adjacent  does  not  aid  the  plaintiff,  for  that,  in  terms,  excludes  the 
place  where  the  supposed  trespass  was  committed.  It  therefore 
became  necessary  to  shew  a  survey  or  conveyance  to  evince  that 
the  title  was  out  of  the  council  of  proprietors,  in  conformity  with 
the  doctrine  urged  by  the  plaintiff  himself. 

He  does  not  give  or  offer  in  evidence  any  conveyance  or  assur- 
ance from  the  proprietors ;  no  common  law  title  is  offered,  but 
he  shews  a  survey  bearing  date  13th  April,  1818.  "When  it  was 
recorded,  does  not  appear ;  when  it  was  inspected  and  approved, 
does  not  appear;  that  it  ever  was  inspected  and  approved, 
does  not  appear.  Inspection,  approbation,  &c.  are  substantive 
acts,  and  the  subject  matter  of  clear  proof.  The  state  (Pat.  N. 
J.  Laws  82,  sec.  3)  enacts,  "  that  any  survey  made  of  any  lands 
within  either  the  eastern  or  western  division  of  the  proprietors 
of  the  state  of  New  Jersey,  and  inspected  and  approved  by  the 
general  proprietors  or  council  of  proprietors  of  such  division, 
and,  by  their  order  or  direction,  entered  upon  record  in  the 
secretary's  office  of  this  state,  or  the  surveyor-general's  office  of 


38  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

such  division  shall,  from  and  after  such  record  is  made,  pre- 
clude and  forever  bar  such  proprietors  and  their  successors 
from  any  demand  thereon,  any  plea  of  deficiency  of  right,  or 
otherwise,  notwithstanding."  This  survey  is  now  produced  un- 
der the  operation  of  this  statute,  to  excuse  the  non-production 
of  a  direct  conveyance  from  the  proprietors  to  the  plaintiff  in 
this  cause.  In  the  acknowledged  absence  of  all  conveyance  from 
them,  shall  it  be  sufficient  to  make  the  defendant  liable,  as  a 
trespasser,  to  him  who  causes  the  survey  to  be  made?  The  sur- 
vey is  made  wholly  at  the  instance,  and  under  the  direction,  of 
the  party.  It  requires  no  warrant,  and,  in  this  case,  had  nono 
accompanying  it.  Suppose  a  man  to  walk  over  unlocated  lands 
between  the  time  of  a  survey  and  the  time  of  its  being  recorded, 
against  whom  does  he  trespass,  the  proprietors,  or  that  indi- 
vidual who  has  caused  the  survey  to  be  made  ?  Is  it  certain  that 
the  survey  will  ever  be  recorded  ?  Many  caveats  interpose,  and 
evince  that  it  is  unlawful  to  record.  Many  preferences  are  given 
by  the  statute,  which  the  council  are  to  decide.  If  wo  imagine 
conflicting  surveys,  we  shall  be  brought  to  the  conclusion,  inev- 
itably, that  the  act  of  the  council  is  essential  to  the  title.  In- 
specting, approving,  and  recording  the  survey  are,  by  this 
law,  in  the  absence  of  all  ordinary  and  regular  conveyance, 
made  equal  to  the  delivery  of  a  deed,  and  the  time  of  delivery, 
beyond  all  controversy,  is  the  time  when  the  title  passes.  To  my 
mind  it  seems  clear  that  this  is  the  only  rational  construction 
of  the  statute.  From  and  after  such  record  is  made  the  survey 
shall  be  operative,  and  it  shall,  from  and  after  that  time, preclude 
and  forever  bar,  &c. 

But  admitting,  for  the  sake  of  argument,  that  a  title,  such  as 
the  proprietors  could  grant,  was  vested  in  the  plaintiff,  antece- 
dent to  the  supposed  trespass,  we  must  proceed  to  examine  what 
that  title  is.  The  plaintiff  claims  an  exclusive  fishery  in  and 
upon  certain  parts  of  the  Rariton  river,  where  the  tide  ebbs 
and  flows.  There  is  a  natural  oyster-bed  there,  and  it  is  below 
low  water  mark.  The  defendant,  Mundy,  has  taken  oysters  from 
this  bed,  and  this  is  the  supposed  trespass.  Our  first  proposition 
is,  that  the  proprietors  have  no  right  to  survey  a  navigable 
river,  where  the  tide  ebbs  and  flows,  for  the  purpose  of  vesting 
private  and  exclusive  rights  therein  in  individuals.  Our  second 
proposition  is,  that  the  people  have  a  vested  right,  communis 
piscarice,\n  such  rivers,  by  the  common  law. 


NOVEMBER  TERM,  1821.  39 

Arnold  v.  Mundy. 

Our  argument  under  the  first  of  these  heads  is,  that  by  pre- 
rogative, the  king  of  England,  in  navigable  rivers,  has  a  right  of 
fishery,  (not  several  nor  exclusive)  and  that  he  has  an  exclusive 
right  to  royal  fish ;  that  he  has  and  holds  these  rights  by  pre- 
rogative only,  as  incident  to  the  kingly  office  and  sovereignty, 
and  that,  therefore,  he  cannot  convey  the  sea,  nor  an  arm  of  the 
sea,  nor  a  navigable  river,  to  a  private  individual  for  a  private 
purpose.  "We  place  our  argument  on  this  broad  basis,  and  insist, 
that  this  is  the  doctrine  of  the  common  law,  of  civil  law,  and  of 
national  law. 

The  case  of  a  cession  from  one  sovereignty  to  another,  as  in 
the  case  of  Louisiana,  the  Floridas,  and  the  immense  countries 
west  of  the  Missouri,  does  not  bear  upon  this  subject.  In  the 
entire  cession  of  the  countries,  the  seas  and  the  rivers,  of  course, 
go  with  the  sovereignty.  We  insist,  that  although  between  the 
ascent  to  the  throne  by  William  the  conqueror,  whose  title  evinces 
that  his  crown  was  the  crown  of  conquest,  and  Magnet,  Charta, 
the  king  did  actually  grant  out  navigable  rivers,  exclusive  fish- 
eries, wiers  in  rivers,  &c.  yet  it  was  contrary  to  common  law 
and  common  right.  The  Norman  succession  considered  Eng- 
land precisely  as  the  counsel  opposed  to  us  consider  this  coun- 
try, a  conquered  country.  And  they  endeavored  to  impose 
that  law  on  Englishmen,  "the  pleasure  of  the  king,"  which  we 
are  now  told  was  the  law,  the  true  and  real  law  binding  on  our 
ancestors.  The  extortions  and  exactions  of  the  followers  and 
favourites  of  the  Norman  usurpation,  far  transcending  their 
policy  or  their  wisdom,  finally  roused  the  spirit  of  Englishmen. 
Their  Saxon  liberties  were  still  remembered  with  the  fondest  rec- 
ollection, and  the  barons,  the  nobles,  the  great  men  et  tota  commu- 
nitas  Anglice,  with  one  vigorous  exertion  of  their  strength,  asserted 
the  return  of  their  ancient  rights  and  laws,  and,  on  the  plains  of 
Runnymede,  received  their  acknowledgment  in  the  first  charter. 
They  considered  this  charter  as  a  great  confirmation  of  many  of 
their  liberties;  as  the  restoration  of  many  of  the  great  principles 
of  the  common  law;  as  restraining  the  king  from  preventing  the 
people  of  their  rights  and  securing  many  important  principles. 

Magna  Charta,  then,  was  the  great  fundamental  law  of  Eng- 
land, binding  alike  on  prince, noble, and  peasant;  securing  rights 
and  prohibiting  their  infringement.  This  charter,  cap.  16,  de- 
clares— "No  banks  shall  henceforth  be  fenced,  but  such  as  were 


NEW  JEESEY  SUPREME  COURT. 


Arnold  v.  Mnndy. 


in  defence  in  the  time  of  our  grandfather  king  Henry,  by  the 
same  places  and  by  the  same  bounds  as  they  were  accustomed 
in  his  time."  Sir  Edward  Coke's  comment  on  this  statute  (2 
Inst.  30)  explains  it  in  a  style  so  decisive  that  there  is  no  escape. 
He  says,  "that  no  owner  of  the  banks  of  rivers  shall  so  appro- 
priate or  keep  the  rivers  several  to  him,  to  defend  or  bar  others, 
either  to  have  passage  or  fish  there,  otherwise  than  they  were 
used  in  the  reign  of  king  Henry  II."  See  also  cap.  23  of 
Magna  Ghana.  To  the  same  effect  is  2  Black.  Com.  39;  and 
in  Salh.  357  and  6  Mod.  73,  we  have  the  decision  of  that  great 
constitutional  Judge  Holt,  that  the  king's  grant  cunnot  bar  a 
subject  from  fishing  in  a  navigable  river.  In  2  Sul.  Feud.  Law 
241,  1  Reeve  234,  Willes  265,  2  Bos.  Pul.  472,  1  Camp.  312,  we 
have  the  same  doctrines  and  principles  quoted  and  remarked  on 
with  high  approbation;  and  that  these  principles  are  not  pecu- 
liar to  the  law  of  England,  but  are  co-extensive  with  civilization 
and  the  government  of  law  we  have  but  to  turn  to  Coop.  Justin. 
67,  1  Vattel  11,  117,  and  2  Domat.  399.  The  answer  to  this  is  not 
satisfactory  to  my  mind.  It  is,  that  the  king  had  the  right  of  soil, 
and  could  grant  it,  and  that  with  the  grant  of  the  soil,  and  as 
incident  thereto,  the  fishery  must  go.  It  is  fairly  admitted,  that 
the  king  has  the  right  of  soil  in  navigable  rivers,  as  a  royalty  as 
incident  to,  and  inseparable  from,  his  character  of  sovereign,  but 
it  by  no  means  follows,  that  he  may  alien  that  which  he  holds 
quasi  in  trust  for  the  subject. 

Unusual  pains  and  industry  have  produced  against  us  the  case 
reported  in  Davies  150,  and  Sir  Matthew  Hale's  treatise  in  Har. 
L.  T.  The  case  in  Davies  was  decided  in  Ireland,  in  the  reign  of 
James  I.  when  the  royal  prerogative  was  at  the  highest  ;  when 
the  jus  divinum  was  every  where  taught,  believed,  and  ruled  ;  and 
when  contest  with  the  kingly  power,  in  defence  of  the  subject's 
right,  was  esteemed  the  madness  of  folly.  Nevertheless,  there  is 
nothing  there  decided  at  war  with  the  great  principles  for  which 
we  contend.  It  is  said,  that  every  river  where  the  tide  ebbs  is  a 
royal  river  ;  and  that  the  fishery  is  a  royal  fishery,  and  belongs  to 
the  king  by  prerogative;  and  that  he  shall  have  exclusive  right 
of  royal  fish.  Let  me  ask,  why  is  the  phrase  exclusive  applied  to 
royal  fish  if  he  has  the  right  of  excluding  the  subject  from  other 
fish? 

The  sole  object  intended  by  citing  Sir  Matthew  Hale's  treatise 


NOVEMBER  TEEM,  1821.  41 


Arnold  v.  Mundy. 


was  to  prove  that  there  actually  were,  and  are  to  this  day,  in  Eng- 
land, several  and  exclusive  fisheries  in  navigable  rivers.  Magna 
Charta  acknowledged  it  hundreds  of  years  ago,  but  enacted  that 
none  should  continue,  except  sucn  as  were  in  use  in  the  lifetime 
Henrici  regis  avi  nostri  et  per  eadem  loca  et  eosdem  terminos.  I 
understand  this  great  man  as  inquiring  into  the  titles  of  exclu- 
sive fishery,  and  the  result  is,  there  are  two.  1.  Grant.  2.  Pre- 
scription of  immemorial  use,  which  implies  a  grant.  The  times 
or  the  dates  of  these  grants  had  not  become  the  question  in  dis- 
cussion, and,  besides,  many  grants  of  several  fishery  might  have 
emanated'  from  the  crown,  such  as  had  been  acquired  by  for- 
feiture, escheat,  or  in  a  variety  of  ways.  I  ask  for  the  evidence, 
that  the  king  may  now  create  a  new  several  of  fishery.  It  is 
that  alone  which  is  prohibited  by  Magna  Charta.  Lord  Hale 
certainly  produces  no  instance  of  a  modern  grant,  none  so  late 
as  the  reign  of  king  John. 

I  think  the  conclusion  therefore  obvious,  that  the  kings  of 
England  are,  by  the  policy  of  the  law,  the  owners  of  the  beds  of 
navigable  rivers,  yet  that  it  is  a  qualified  ownership,  and  such  as 
that  they  cannot  part  with  for  private  purposes,  but  must  hold 
them  quasi  in  trust  for  the  subject.  The  grant  from  king  Charles 
II.  to  the  duke  of  York  was,  I  think,  founded  on  these  princi- 
ples. The  conveyance  was  of  New  York  and  New  Jersey,  with 
power  of  government,  and  reserving  an  appeal  to  the  king  in 
council.  He  entered  to  make  the  duke  of  York  a  sub-sovereign; 
he  conveyed  the  lands  to  him  as  a  subject,  and  the  royalties  as 
a  sovereign.  He  understood  well  that  these  navigable  rivers 
belonged  to  the  sovereignty.  They  continued  in  the  sovereign 
still,  for  he  alone  could  hold  them,  as  trustee,  for  the  subject's  use. 

It  is  a  little  remarkable  how  mere  a  self-murder  the  ai-gument 
of  our  opposing  counsel  is,  when  applied  to  the  fisheries  in  the 
Delaware  river.  In  the  conveyance  from  the  duke  of  York  to 
Carteret  and  Berkley,  the  western  extremity  is  the  eastern  mar- 
gin of  the  Delaware.  The  river  Delaware  was  not  conveyed  to 
them,  that  remained  in  sovereignty;  and  now  we  are  told,  that 
the  divisional  line  of  this  state  extends  westward  only  to  the 
east  margin  of  the  Delaware.  It  does  not  extend  an  inch  into  the 
river ;  and  yet  many  men,  from  owning  the  adjacent  soil,  are  the 
owners  of  valuable  fisheries.  Examine  this  position  one  moment. 
The  boundary  of  the  state  is  the  east  margin  of  the  river,  and 


42  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

yet  there  are  fisheries  appurtenant,  out  of  the  state,  to  invade 
which  would  be  a  trespass,  and  clausum  fregit  would  lie. 

I  deny  every  word  of  this  doctrine.  The  stat^  of  New  Jersey, 
as  a  free  and  sovereign  state,  extends  usque  ad  medium  filum 
aquce,  east  and  west.  In  the  character  and  capacity  of  proprietors, 
Carteret  and  Berkley  took  neither  the  Hudson  nor  the  Delaware. 
So  far  forth  as  sovereignty  was  created,  and  no  farther,  were 
these  great  navigable  rivers  given  ;  the  land  only  was  given,  and 
rivers  not  navigable,  the  only  lawful  objects  of  property. 

When  New  Jersey  and  Pennsylvania  became  free  and  sov- 
ereign, the  Delaware  rolled  between  them,  and,  ipso  facto,  the 
centre  of  that  river  became  the  division  line,  until  a  mutual  con- 
'vention  between  them  settled  their  boundary;  and  such,  we  are 
sure,  was  their  apprehension  of  the  matter,  for,  by  treaty,  they 
divided  the  river  and  the  islands  within  it.  In  like  manner  is  the 
divisional  line  with  New  York  ultimately  to  be  settled.  Precisely 
the  reasoning  urged  against  us  would  bring  the  jurisdiction  of 
New  York  to  high  water  mark  on  the  Jersey  shore.  New  York 
answers  to  our  claims,  and  reasons  just  as  the  council  of  proprie- 
tors do  here.  The  whole  of  the  two  states  was  given  to  the  duke 
of  York;  what  was  not  sold  off  remains  to  us.  Now  Jersey,  by 
special  metes,  was  sold  off,  and  you  are  to  take  this  strict  mea- 
sure? Not  so.  The  great  river  Hudson  vested  and  remained  in 
the  sovereignty  till  the  declaration  of  independence;  it  then 
became  a  great  natural  boundary,  and  vested  in  the  sovereign- 
ties of  the  two  states,  and  the  middle  is  the  proper  boundary 
until  treaty  shall  establish  another. 

The  result  seems  to  me  to  be  conclusively  this,  that  the  sov- 
ereign has  allodium  of  the  soil  of  the  sea  and  its  arms ;  a  right 
of  fishery,  quasi  in  trust  for  all  the  citizens  and  subjects;  that  he 
has  the  exclusive  right  to  royal  fish ;  that  fishery  and  navigation 
are  co-extensive;  the  subject  in  a  limited  government,  and  the 
citizen  in  a  free  republic  have,  in  my  mind,  the  undoubted  com- 
munem  piscariam  and  the  right  of  navigation.  The  king's  prerog- 
ative in  England  may  be,  and  often  is,  one  of  the  subject's  rights; 
the  eea  is  res  communis.  In  relation  to  newly  discovered  coun- 
tries, our  original  proposition  seems  to  me  unimpaired.  The  soil 
and  the  rivers  are  a  great  national  domain.  The  country  must 
be  inhabited,  or  the  king  loses  his  right;  and  when  inhabited, 
the  people  carry  with  them  the  same  rights  and  privileges  they 


NOVEMBER  TERM,  1821.  43 

Arnold  v.  Mundy. 

had  in  the  mother  country,  I  said,  before,  that  fishery  and  navi- 
gation were  co-extensive. 

If  King  Charles  II.  could  grant,  and  did  grant,  all  of  New 
Jersey,  all  the  rivers,  &c.  for  private  purposes;  if  there  was  no 
public  law  to  restrain  him  in  the  use;  if  his  assignees  stand  in 
pari  ratione;  and  if,  under  this  conveyance,  now  after  the  bond 
of  union  between  this  country  and  England  is  severed  for  ever, 
the  assignees,  the  lords  proprietors,  can  assert  the  right  and 
exercise  it  too,  of  parcelling  out  exclusive  fisheries  in  the  navi- 
gable rivers;  if  their  claim  be  just  and  lawful,  viz.  that  the 
whole  was  theirs,  and  what  is  not  sold  still  remains  to  them,  1 
ask,  what  is  to  prevent  their  taxing  navigation  and  commerce? 
Every  sloop  that  sails  commits  a  trespass.  This  controversy 
about  the  oysters  is  but  the  entering  wedge;  the  shad  fisheries 
and  the  navigation  come  next;  and  the  same  process  of  reasoning 
which  will  justify  the  one,  in  like  manner  will  establish  the  other. 

Their  title  to  the  rivers,  we  are  told,  was  not  a  public  title  for 
public  use,  in  which  all  the  citizens  had  an  interest,  but  it  was  a 
private  individual  interest  of  their  own,  the  subject  of  sale  for 
money.  It  is  a  plain  and  direct  assertion,  that  fisheries,  navi- 
gation, and  bridges  belong  exclusively  to  them. 

I  have  taken  no  notice  of  the  conveyance  of  sovereignty  to 
the  lords  proprietors;  it  is  not  here  necessary  to  discuss  that. 
The  decision  in  the  reign  of  queen  Anne  was,  that  they  could 
not  lawfully  exercise  jurisdiction  and  government,  and  the  sur- 
render of  the  government  to  her  was  founded  on  that  decision. 
But  if  the  government  did  pass  by  the  grant  of  the  duke  of  York 
to  Carteret  and  Berkley,  and  if  their  assigns  could,  and  did,  take 
the  government  by  virtue  of  their  grant,  it  is  clear  that  they  took 
the  royalties  therein  mentioned,  rivers,  bays,  ports,  coasts  of  the 
sea,  &c.  in  the  character  of  sovereignty,  as  that  common  property 
of  the  nation,  the  nominal  ownership  of  which  is  ascribed  to  the 
sovereign,  but  which  is  held  in  trust,  and  of  which  all  have  a 
common  right  to  partake.  The  surrender  to  queen  Anne  re 
stored  all  these  royalties  to  the  crown  of  England,  if  they  ever 
were  separated.  It  follows,  that  upon  the  Revolution,  when  the 
people  of  New  Jersey  became  free,  sovereign,  and  independent,  all 
these  royalties  vested  in  them  the  legal  title  and  the  use  existing 
in  the  same;  and  that  the  legislature  of  this  state  never  having 
given  any  exclusive  right  or  title  to  the  plaintiff,  he  is  without 
right  or  title,  and  was,  therefore,  properly  called  at  the  trial. 


44  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

R.  Stockton,  in  reply,  after  stating  the  case  from  the  record 
generally,  said — This  nonsuit,  if  supported,  would  bo  of  serious 
import  to  an  important  species  of  property  which  had  been 
claimed  and  enjoyed  from  the  first  settlement  of  New  Jersey; 
it  struck  at  the  root  of  all  title  of  several  fishery  in  navigable 
rivers  in  the  state  of  New  Jersey,  a  property  all  important  to  num- 
erous respectable  families  located  on  those  rivers,  and  enjoyed 
uninterruptedly  until  this  defence  had  called  it  into  question. 

The  plaintiff's  complaint  was  for  breaking  his  close  covered 
with  water  and  taking  away  planted  oysters.  To  sustain  his  suit, 
it  was  incumbent  on  him  to  prove — 1.  That  he  had  title  and  pos- 
session of  the  locus  in  quo.  2.  That  the  oysters  were  his.  3.  That 
the  defendant  entered  and  took  them.  These  points  being  estab- 
lished, it  would  rest  with  the  defendant  to  shew  that  he  had  a 
right  to  enter  and  do  what  he  did.  The  place  where,  &c.  was  a 
mud  flat  on  the  river  Rariton,  opposite  the  farm  of  the  plaintiff, 
the  greater  part  between  high  and  low  water  mark,  all  between 
the  land  and  the  channel  of  the  river,  and  being  of  no  kind  of 
benefit  to,  and  utterly  unfit  for,  navigation. 

To  this  ground  the  plaintiff  sets  up  his  titles.  1.  By  the  com- 
mon law,  as  being  a  mud  flat  between  a  navigable  river  and  the 
plaintiffs  farm,  bounded  by  the  river,  and  being  immediately 
opposite  to  his  farm.  2.  By  a  proprietary  survey,  made  prior  to 
the  trespass,  by  which  the  whole  premises  were  conveyed  to 
him  by  the  proprietors,  which  would  operate  either  as  a  new 
grant,  or  a  confirmation,  according  as  it  might  be  necessary  to 
apply  it  to  the  subject  matter. 

I.  As  to  his  title  to  the  flat,  as  opposite  and  adjoining  his 
main  farm.  It  is  true,  that  at  the  common  law,  this  right  seems 
to  be  restricted  to  high  water  mark,  in  the  case  of  navigable  or 
public  rivers,  but  extends  to  the  channel,  or  ad  filum  aquae,  in 
private  rivers,  or  those  not  navigable.  It  might  be  contended, 
with  much  reliance,  that  all  the  rivers  included  within  the  con- 
veyance from  Charles  II.  to  the  duke  of  York  ceased  to  be 
public,  and  were  made  private  rivers  by  the  conveyance  to  tho 
duke,  he  being  then  a  subject,  and  the  property  being  a  country 
wild  and  uninhabited,  except  by  savage  tribes. 

Upon  this  ground,  perhaps,  it  is  that  Swift  in  his  System,  vol. 
I.  343,  lays  down  the  general  proposition  "that  in  navigable 
rivers,  every  proprietor  of  land  is  deemed  to  have  the  exclusive 


KOYEMBER  TEEM,  1821.  45 

Arnold  v.  Mundy. 

right  in  rivers  and  seas  adjoining  his  land  to  the  channel;"  and 
he  adds,  "  that  no  person  may  take  oysters  or  any  shell-fish  from 
their  beds  in  front  of  another's  land,  or  draw  a  seine  for  other 
fish,  though  he  does  not  for  that  purpose  enter  upon  the  land  of 
the  adjoining  proprietor."  It  is  also  a  notorious  fact,  that  in  the 
discussion  which  took  place  some  years  ago  between  the  com- 
missioners of  this  state  and  New  York,  our  commissioners  de- 
fended our  claim  to  the  channel  of  the  Hudson  upon  the  ground, 
that  to  all  purposes,  but  that  of  navigation,  that  river  must  be 
considered  as  a  private  river.  Rep.  of  Com.  14,  15.  This  report 
was  made  to  the  legislature;  their  proceedings  approved,  and 
their  argument  published  under  the  sanction  of  the  legislature. 

II.  But  it  is  unnecessary  to  press  this  point,  because  we  gave 
in  evidence  a  survey  and  location  of  the  oyster  bed,  regularly 
made,  in  virtue  of  a  proprietary  right,  before  the  trespass  com- 
plained of.  One  of  the  adverse  counsel  has  taken  an  exception 
to  this  title  in  limine,  that  although  "this  survey  and  location 
was  made  prior,  yet  it  was  recorded  after  the  trespass,  as  if  the 
title  was  founded  on  the  record,  or  even  the  approbation  by  the 
counsel  of  the  proprietors,  and  not  on  the  actual  survey  and  loca- 
tion." I  shall  not  stop  to  answer  this  objection.  The  Chief 
Justice,  in  his  opinion  has  fully  and  ably  disposed  of  it ;  his 
reasoning  on  that  point  needs  no  aid  from  the  bar;  it  will  take 
care  of  itself,  and  there  it  will  be  left  by  me. 

The  general  question  then  is,  whether  these  mud  flats  did  not 
pass  in  full  propriety  to  the  plaintiff7,  either  by  his  title  to  the 
main  farm,  or  by  this  particular  survey?  If  the  title  to  this  flat 
ever  was  in  the  proprietors,  it  certainly  has  passed  to  us.  That 
it  was  in  the  proprietors,  no  court  of  justice  in  New  Jersey  is  at 
liberty  to  deny.  This  title  has  the  same  foundation  upon  which 
rests  all  title  to  real  estate  here ;  it  is  simple  and  conclusive. 
Charles  II.  claiming  and  in  possession  of  the  whole,  conveys  to 
the  duke  of  York  a  much  greater  territory.  The  terms  of  the 
grant  are  as  extensive  as  the  English  language  affords,  and  as 
English  lawyers  could  put  into  a  conveyance.  It  conveys  "  all 
the  lands,  soils,  rivers,  waters,  harbours,  fishings,  fowlings,  roy- 
alties, profits,  commodities,  and  appurtenances  in  fee  simple,  to- 
gether with  the  powers  of  government,  with  the  exceptions,  that 
he  holds  of  the  king  by  the  tenure  of  free  soccage,  and  that  his 
laws  shall  be  assimilated  as  near  as  may  be  to  the  laws  of  Eng- 


46  NEW  JERSEY  SUPEEME  COURT. 

Arnold  v.  Mundy. 

land.  Tho  duke  conveys,  in  the  very  same  terms,  to  Carteret 
and  Berkley;  and  all  their  rights  have  been  transmitted,  by 
mesne  conveyances,  to  the  present  proprietors.  They  purchased 
not  only  the  soil  and  waters,  but  the  government  also,  and  were 
the  lords,  legislators  and  owners  of  the  territory,  as  fully  as  the 
duke  had  been.  Who,  then,  can  doubt  but  that  as  all  our  title 
to  land  must  be  deduced  from  this  grant,  so,  according  to  the 
terms  used,  and  the  intent  of  both  parties,  it  did. pass,  not  only 
the  fast  land,  but  also  all  those  parts  of  the  sea  shore,  bays  and 
rivers  not  considered  as  part  of  the  fast  land,  which  a  king  of 
England  acquiring  title  to  a  new  and  uninhabited  country  would 
legally  grant  and  convey.  It  is  admitted  on  all  hands,  that  the 
fast  land  to  high  water  mai-k  passed ;  and  it  has  been,  and  will 
be  abundantly  shewn,  that  the  rest,  to  wit,  the  shore  between 
high  and  low  water  mark,  the  flats,  bays,  rivers  and  waters, 
from  the  sea  to  high  water  mark,  passed. 

Now,  without  going  at  present  into  the  question  of  general 
right  to  several  fishery  incidental  to,  and  inseparably  attached, 
as  we  think  it  is,  to  the  right  of  soil,  may  wo  not  say  that  the 
plaintiff's  evidence  sustained  his  ca5e,  and  that  he  ought  not  to 
have  been  nonsuited.  We  shew  that  the  land  was  ours ;  that 
the  plaintiff  purchased  the  oysters;  planted  them  on  his  own 
ground ;  staked  that  ground  off,  but  not  so  as  to  interfere  either 
with  the  right  of  taking  swimming  fish  or  of  free  navigation. 
Thus  did  the  plaintiff  purchase,  and  plant  on  his  own  soil,  the  fry 
of  shell-fish  taken  from  distant  natural  beds,  with  intent  to  im- 
prove them;  but  the  defendant  entered  his  close,  with  tongs  took 
the  oysters  out  of  the  very  soil,  and  converted  them  to  his  own  use. 
Did  not  these  oysters  belong  to  the  plaintiff?  Tho  original  foun- 
dation of  all  personal  property  is  appropriation  at  the  expense,  and 
by  the  labour  of  the  claimant.  2  Slack.  Com.  9,  391.  In  respect  to 
animals  called  in  law/eree  natural,  which  can,  when  in  a  state  of 
nature,  have  no  particular  owner,  it  is  emphatically  so.  Deer  put 
into  a  park,  rabbits  in  a  warren,  fish  in  a  pond,  become  private 
property  by  caption  and  detention.  Tho  case  of  oysters  planted 
on  a  man's  own  soil  is  at  least  as  strong.  The  plaintiff's  case 
includes  in  it  every  principle  of  original  acquisition  ;  the  payment 
of  the  purchase  money,  made  the  fry  the  property  of  plain- 
tiff; the  labour  in  planting  them;  the  deposit  on  his  own  land  ; 
constituted  each  a  good  foundation  of  exclusive  property;  nor 


NOVEMBER  TERM,  1821.  47 

Arnold  v.  Mundy. 

could  such  an  act  of  planting,  though  in  the  water,  amount  to 
an  abandonment.  Such  was  not  the  intention  nor  tendency  of 
the  act;  but  the  very  reverse  was  intended  when  he  planted 
them  in  his  own  soil  and  put  up  public  visible  marks,  distinguish- 
ing them  from  all  others.  If,  then,  such  be  the  foundation  of  all 
property;  if  exclusive  right  to  the  fish  that  swim,  the  deer  that 
bound,  and  to  the  bird  that  flies,  may  be  acquired  by  appropriation, 
why  shall  he  not  have  in  the  oysters  which  he  has  purchased  with 
his  money,  planted  by  his  labour,  and  deposited  on  his  own  soil, 
from  which  they  never  can  depart  of  themselves,  the  same  rights  ? 
What  is  the  answer  of  the  adverse  counsel?  It  is  that  this 
oyster-bed  is  located  in  a  navigable  river,  where  the  tide  ebbs  and 
flows,  the  defendant  had  a  common  right  to  fish  there,  and, 
therefore,  his  entry  and  taking  away  the  oysters  was  lawful. 

Waiving,  at  present,  the  position,  I  shall  hereafter  endeavour 
to  maintain,  that  the  plaintiff  has  shewn  full  title  to  a  several 
fishery  on  this  ground,  for  all  kinds  of  fish;  I  shall  here  deny 
that  there  was  any  common  right  to  take  these  fish.  The  com- 
mon right,  where  it  exists,  is  confined  to  fish  in  their  natural 
state,  swimming,  if  they  are  floating  fish,  and  if  they  arc  shell- 
fish, in  a  state  of  nature  where  they  are  spawned.  It  is  clear, 
that,  at  common  law,  the  owner  of  a  river  might  make  a  weir  across 
it,  if  it  did  not  injure  the  navigation,  because  it  was  his  own,  and 
such  a  weir,  per  se,  made  a  several  fishery.  Har.  L.  T.  18,  22, 
23.  4  Mass.  Rep.  527.  Now  here  is  a  grant  of  the  land  itself, 
laid  in  front  of  the  plaintiff's  farm,  of  moderate  and  reasonable 
extent,  not  at  all  impeding  or  injuring  the  navigation,  appropri- 
ating only  a  mud  flat,  planted  with  small  fry  at  private  expense; 
how,  upon  any  sound  principle,  can  a  pretended  common  right 
to  fish  authorize  an  individual  against  the  will  of  the  owner,  forci- 
bly to  enter  and  carry  them  off?  What  is  a  common  of  fishery? 
It  is  a  mere  privilege  or  franchise;  it  is  no  title  to  the  land  or 
fish;  a  mere  privilege  to  take  fish,  and  must  be  used  reasonably; 
to  extend  it  further  than  to  take  fish  in  their  natural  state,  is  unjust 
and  unreasonable,  and  therefore  unlawful.  It  would  permit  what 
the  law  reprobates,  the  taking  the  property  of  another  without 
compensation.  To  support  it  is  little  better  than  to  authorize 
plunder,  whatever  fine  names  it  may  go  by.  No  case  can  be 
shewn,  justifying  the  taking  of  fish  out  of  a  pool,  pond,  or  weir 
in  a  navigable  river,  under  pretence  of  the  common  right.  The 


48  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

only  question  in  such  cases  is,  whether  the  pond,  pool,  or  weir  is  a 
nuisance  to  the  navigation?  It  is  said,  that  on  this  ground  there 
were  some  oysters  naturally  bred.  Suppose  there  were,  did  this 
authorize  the  defendant  to  take  those  which  the  plaintiff  had 
planted  there?  It  was  incumbent  on  the  defendant  to  have  shewn 
in  evidence,  that  those  he  took  were  natural  oysters.  He  made 
no  pretence  of  this ;  on  the  contrary,  it  is  stated  by  the  report  of 
the  Chief  Justice,  that  he  took  the  oysters  planted  by  the  plaintiff. 
Again — it  was  said,  that  mixing  them  with  the  natural  oysters 
destroyed  our  property.  Not  so.  There  was  no  evidence  that 
the  rows  of  planted  oysters  could  not  be  distinguished  from  the 
natural.  The  defendant  had  sufficient  ground  left  upon  which  to 
exercise  his  right.  The  owner  of  the  soil  has  a  right  to  fence  in 
if  he  leaves  enough  for  common  use.  2  Sac.  392.  The  court 
instead  of  nonsuiting  the  plaintiff,  should  have  put  it  to  the  jurj 
to  decide,  whether  the  oysters  taken  were  those  planted  ?  whethei 
they  could  be  distinguished  from  the  natural  oysters?  ant* 
whether  there  was  not  common  enough  left  by  the  plaintiff  un 
enclosed?  If  we  are  owners  of  the  soil,  the  defendant  had  no  right 
to  enter  and  take  the  oysters  from  the  soil ;  our  act  in  planting 
and  appropriating  amounted  only  to  a  surcharge  of  the  conxnon. 
In  such  case  the  commoner  is  put  to  his  action.  The  case  of 
Cooper  v.  Marshall  (1  Bur.  259)  is  full  in  point.  In  England,  the 
right  of  property  in  oyster-beds  in  navigable  rivers  is  acknowl- 
edged as  existing  at  common  law,  and  is  protected  by  penal 
statutes.  3  Chitty's  Crown  Law  359.  By  the  statute  31  George 
III.  chap.  51,  the  taking  oysters  from  such  beds  is  made  a  mis- 
demeanor. 3  Chitty's  Crown  Law  359.  By  the  48  George 
III.  chap.  144,  it  is  made  felony;  yet  there  is  no  prior  statute 
making  such  beds  in  navigable  rivers  the  subject  of  private  prop- 
erty. By  these  statutes,  the  legislature  recognize  oj'ster-beds 
and  the  oysters  there  planted  as  private  property,  and  protect  it 
by  making  the  spoliation  thereof  an  indictable  offence.  5  Esp. 
Rep.  62.  1  Camp.  309.  In  the  cases  which  have  occurred  under 
these  statutes,  this  idea  of  common  right  to  take  oysters  has  never 
been  set  up  as  a  justification  of  the  offence;  but  the  distinction 
between  floating  fish  in  a  state  of  nature,  and  oysters  in  a 
bed,  is  recognized.  In  the  case  of  the  State  v.  Capt.  Lewis,  who 
was  indicted  for  an  assault  upon  those  same  Woodbridge  men, 
in  defending  his  oyster-bed  adjoining  the  premises,  tried  at  the 


NOVEMBER  TEEM,  1821.  49 

Arnold  v.  Mundy. 

Court  of  Oyer  and  Terminer  of  Middlesex  county  a  few  years 
ago,  he  was  defended  on  his  right  of  property  to  the  bed  and  the 
oysters  which  he  had  planted ;  and  although  the  assault  was  by 
presenting  a  loaded  pistol,  attended  by  a  threat  of  inflicting 
death  if  the  trespassers  did  not  desist,  and  was  fully  proved,  yet 
the  defendant  was  acquitted  by  the  jury  on  the  charge  of  the 
Chief  Justice,  that  Capt.  Lewis  had  a  right  to  defend  his  prop- 
erty, and  that  what  he  did,  did  not  exceed  the  bounds  of  defence. 
This  case,  compared  with  the  present,  affords  a  strong  instance 
of  discrepancy  in  judicial  opinions.  One  citizen  loads  his  pistol, 
takes  the  field  and  drives  off  the  plunderers,  acting  as  they  did, 
on  this  same  pretence  of  common  right;  another  citizen,  not  so 
adventurous,  submits  peaceably,  appeals  to  the  law  of  the  land, 
and  is  nonsuited  by  the  same  respectable  judge  by  whose  direc- 
tion the  other  had  been  acquitted! 

The  principles  of  private  right  and  of  public  convenience  re- 
quire that  this  species  of  property  should  be  protected.  The 
oysters  on  the  open  beds  are  nearly  exhausted  ;  the  rakers  have 
become  so  numerous  that  oysters  are  not  permitted  to  attain 
any  maturity ;  they  are  small  and  worthless — hence  the  price  of 
those  fit  for  use  is  greatly  enhanced ;  but  if  this  reasonable  use 
of  a  man's  own  soil  is  permitted  and  protected,  every  land  owner 
on  the  shores  of  our  bays  and  salt  rivers  will  have  an  oyster-bed ; 
the  quantity  brought  into  market  will  bring  down  the  price,  so 
that  the  poor  as  well  as  rich  may  eat  and  be  glad. 

The  only  other  case  which  has  occurred  in  New  Jersey  was 
cited  from  1  Pen.  391,  by  the  adverse  counsel.  But  in  that  case 
the  planter  of  the  oysters  had  no  pretence  of  right  of  soil ;  ho 
was  not  the  owner  of  the  adjoining  farm,  nor  had  he  made  any 
location  of  the  premises;  he  was  merely  a  wayfaring  man,  who 
dropt  his  oysters  in  a  navigable  river.  At  the  time  when  that 
case  was  decided  it  seemed  quite  clear,  from  the  anxiety  mani- 
fested by  the  judges  to  protect  planted  oysters,  that  if  he  had 
been  owner  of  the  soil  he  would  have  been  successful. 

II.  General  point. — But  not  to  rest  on  this  particular  case,  as 
forming  an  exception  to  a  general  rule,  I  shall  follow  the  adverse 
counsel  through  the  great  point  which  they  have  laboured,  and, 
notwithstanding  the  learned  arguments  we  have  heard,  I  submit 
it  that  our  claim  to  a  several  fishery  has  been  fully  sustained. 
The  adverse  counsel  yield  to  us  some  of  our  ground.  They 

VOL.  I.  D 


60  NEW  JERSEY  SUPREME  COURT.  . 

Arnold  v.  Mundy. 

seemed  to  admit  that  these  rivers,  bays  and  waters,  with  the 
land  the}7  cover,  are  the  subjects  of  exclusive  property,  and  that 
by  the  law  of  England  the  king  is  the  general  owner. 

The  points  debated  are — 1.  Could  the  king  lawfully  grant  a 
right  of  several  fishery  in  a  navigable  river?  and  did  he  grant 
such  a  right  to  the  duke  of  York,  and  he  to  the  proprietors?  2. 
If  he  could,  and  such  right  did  originally  pass,  was  it  surren- 
dered by  the  proprietors  to  queen  Anne  ? 

1.  The  right  of  the  king  of  England  to  make  such  a  grant  is 
denied  by  the  defendant's  counsel.  But  it  has  already  been 
shewn — 1.  That,  by  the  common  law,  the  king  had  such  a  right. 
2.  That  there  was  no  statute  of 'England  which  prohibited  the 
king  from  making  such  a  grant  of  lands  in  New  Jersey. 

1.  Charles  II.  as  king  of  England,  was  owner  of  New  Jersey. 
His  title  was  such  as  was  recognized  by  all  civilized  nations,  dis- 
covery of  a  new  and  before  unknown  territory  inhabited  by  sav- 
ages— conquest  from  the  Indians  and  Dutch;  these  were  the 
foundations  of  his  right.  We  have  an  authentic  history  of  these 
transactions.  The  English  first  discovered  and  took  possession 
of  this  part  of  North  America.  Being  at  war  with  the  states  of 
Holland,  they  were  driven  out  by  their  enemy,  who  took  pos- 
session and  built  the  city  of  New  York,  then  called  New  Am- 
sterdam. They  extended  their  settlements  into  New  Jersey, 
particularly  into  the  adjacent  counties  of  Bergen,  Essex,  Mon- 
mouth,  Somerset  and  Middlesex,  the  first  inhabitants  of  which 
were  generally  Hollanders.  But  in  1664,  the  English  re-con- 
quered the  territory  and  expelled  the  Dutch  government.  The 
king  thus  gained  a  new  title,  by  conquest  over  a  civilized  owner. 
His  grantee,  the  duke  of  York,  took  complete  possession,  and 
the  whole  landed  property  of  New  Jersey  is  held  immediately 
from  the  king  of  England.  He  held  it  not  merely  in  point  of 
jurisdiction,  but  also  of  ownership.  It  was  unappropriated  land, 
'a  savage  wilderness,  a  great  waste.  To  such  property  the  law 
appoints  the  king  as  owner,  because  there  is  no  other.  Moreover, 
it  is  a  fundamental  principle  of  the  common  law,  that  all  lands, 
even  those  of  private  men,  are  held  of  the  king.  Where  there  is 
no  private  owner,  therefore,  all  persons  must  claim  title  through 
.him.  2  Black.  Com.  49,  50.  In  respect  to  the  old  settled  and 
granted  lands  in  England  this  may  be  a  fiction  of  law,  but  it  is 
-.truth  and  history  here.  It  was  a  newly  discovered  wilderness, 


NOVEMBER  TEEM,  1821.  51 

Arnold  v.  Mundy. 

conquered  by  the  king  of  England :  it  was  his  from  necessity, 
and  belonged  to  him  solely,  substantially,  and  beneficially.  Thus, 
being  the  lord  and  owner  of  the  land,  shores,  rivers,  bays,  and 
waters,  he  conveys  to  the  duke  of  York  as  fully  and  amply  as 
he  held  them,  except  only  that  his  title  was  allodial,  the  duke's 
feudal,  in  free  and  common  soccage.  Not  only  does  he  convey 
the  full  propriety,  but  to  make  it  more  full,  and  as  extensive  as 
possible,  he  grants  also  the  powers  of  government.  The  duke 
conveys  to  Berkley  and  Carteret,  and  they  to  the  proprietors, 
as  fully  and  extensively  as  the  same  were  conveyed  to  the  duke. 
This  was  a  solemn  deliberate  act,  well  considered  at  the  time, 
and  intended  to  convey  all  which  the  granting  words  imply.  It 
was  twice  conveyed ;  the  first  grants  were  in  1664,  but  at  the 
date  of  the  first  grant  to  the  duke,  the  Dutch  were  in  possession, 
but  they  were  expelled  the  same  year.  Ten  years  afterwards, 
doubts  being  entertained  whether  the  re-conquest  did  not  give 
the  king  a  new  title,  notwithstanding  his  grant  of  1664,  he,  in 
1674,  made  a  second  grant  to  the  duke,  and  he  to  the  proprie- 
tors, in  the  same  terms  with  the  first.  Then,  to  wit,  in  July,  1676, 
followed  the  deed  of  partition,  commonly  called  the  quinti  parte 
deed,  by  which  East  Jersey  is  assigned  to  Carteret,  and  West 
Jersey  to  Berkley ;  and  afterwards,  in  1682,  the  trustees  of  Car- 
teret convey  East  Jersey  to  the  twelve  proprietors,  under  whom 
the  present  proprietors  claim.  All  these  mesne  conveyances  adopt 
the  words  of  the  original  grant  in  extenso,  constituting  the  pro- 
prietors as  fully  owners  and  governors  as  the  duke,  or  even  the 
king  himself  had  been,  saving  only  their  allegiance  to  the  British 
crown.  Under  this  title  did  the  proprietors  take  possession  as 
owners  and  rulers.  They  appointed  their  governor,  made  their 
constitutions,  granted  lands,  and  did  every  thing  which  pertained 
to  full  and  absolute  ownership  and  dominion.  This  title,  and  the 
proceedings  of  the  proprietors  under  it,  were  repeatedly  con- 
firmed by  the  English  monarchs,  nor  were  their  powers  ever 
questioned  until  a  short  time  before  the  surrender  of  the  govern- 
ment to  queen  Anne,  and  then  nothing  further  was  questioned 
than  the  grant  of  the  important  powers  of  political  government. 
Was  all  this  delusion  ?  Had  the  grantees  really  no  beneficial 
interest?  Were  they  trustees  for  the  expected  settlers,  or  the  true 
owners  and  proprietors  of  every  thing  included  legally  in  the 
forms  of  the  grants  ?  Let  every  landholder,  every  owner  of  sev- 


52  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mandy. 

enxl  fishery, from  Hackcnsack  to  Cape  May,look  well  to  the  answer 
given  to  these  questions,  all  our  titles  depend  upon  it;  tho 
answer  of  law,  liberty,  and  justice  at  this  time  of  day  is,  that  all 
which  the  grants  purport  to  grant,  were  legally  and  effectually 
granted. 

By  the  common  law,  the  king  is  the  owner  of  all  navigable 
rivers,  bays,  and  shores  below  low  water  mark,  and  he  owns 
them,  not  as  trustee,  but  in  full  dominion  and  propriety.  Davies 
152  to  155.  6  Com.  Dig.  tit.  Prerogative  55  (D  50).  5  Ib.  Navi- 
gation (A}  102.  Har.  L.  T.  10,  11.  He  has  as  full  a  right  to 
grant  and  convey,  at  the  common  law,  as  a  private  man  has  to 
convey  his  farm,  and  this  law  has  annexed  to  this  right  but 
two  limitations.  1.-  That  these  waters  shall  remain  highways  for 
passage  and  navigation.  2.  That  while  they  remain  ungranted 
there  is  a  common  right  of  fishery  therein.  The  cases  cited  fully 
prove,  that  in  places  over  which  the  tide  ebbs  and  flows,  between 
high  and  low  water  mark  (seaward)  the  king,  by  the  common 
law,  has  not  only  the  jurisdiction  but  the  property.  This  was  tho 
law  as  understood  by  Lord  Hale,  a  most  learned  judge,  not  in- 
clined to  stretch  tho  rights  of  the  crown,  and  that  even  in  regard 
to  tho  waters,  seas,  and  rivers  within  the  English  dominions. 
How  much  stronger  is  the  case  here,  as  to  waters  washing  a 
newly  acquired  territory  uninhabited  only  by  the  savage  tribes, 
and  acquired  by  conquest.  That  the  king,  as  owner,  may  grant 
to  an  individual  a  several  fishery  in  a  navigable  river,  is  the 
received  common  law  of  England.  5  Com.  Dig.  Navigation  B, 
102.  Har.  L.  T.  17,  18,  19,  22,  23.  Ib.  34,  5,  particularly  tho 
case  of  Crow  v.  Johnson.  These  authorities  are  express  to  the 
point,  and  need  no  comment.  Neither  Lord  Hale  nor  Chief 
Baron  Comyns  understood  the  rule  of  the  common  law  to  bo 
•what  the  counsel  contend  for.  What  answer  is  given  to  these 
cases?  The  adverse  counsel  say,  that  they  refer  to  old  grants 
made  by  the  kings  of  England,  by  usurpation,  before  tho  passing 
the  celebrated  statute  of  Magna  Charta ;  that  such  grants  are 
prohibited  by  this  statute,  and,  therefore,  the  grant  was  void  as 
to  the  right  of  fishery.  This  position  of  the  defendant's  counsel 
is  not  founded  in  law.  Have  we  not  proved  that  the  king  is  owner 
by  the  common  law?  Shall  he  then,  of  all  owners,  be  the  only 
one  who  cannot  grant  all  that  belonged  to  him  ?  This  is  in  truth 
reversing  the  most  fundamental  principle  of  the  English  law, 


NOVEMBEK  TEEM,  1821.  53 

Arnold  v.  Mundy. 

which  gives  to  the  king,  by  his  prerogative,  more  ample  powers 
than  any  subject  can  possess.  Lord  Hale  makes  no  such  distinc- 
tion. He  wrote  in  the  reign  of  this  same  king,  two  centuries  after 
Magna  Charta,  and  he  considers  it  then  as  perfectly  clear  that 
the  king  might  lawfully  grant  these  exclusive  water  rights. 

If  such  grants  were  considered  usurpations,  why  were  they  not 
annulled  by  course  of  law?  "Would  so  great  and  learned  a  lawyer 
as  Hale  have  treated  them  with  such  respect,  if  they  were  all  un- 
lawful by  the  common  law?  The  gentlemen  are  obliged  to  con- 
cede, that  an  individual  may  claim'a  several  fishery  in  a  naviga- 
ble river  by  prescription.  This  concession  admits  the  legal  power 
of  the  king  to  grant,  for  it  is  a  first  rule  of  this  branch  of  the  law, 
that  nothing  can  be  prescribed  for  which  could  not  be  granted. 
Prescription  presupposes  a  grant,  which  from  length  of  time 
cannot  be  shewn.  7  Coke's  Eep.  18.  2  Black.  Com.  264.  "When, 
therefore,  modern  judges  and  writers  agree  that  you  may  pre- 
scribe for  a  several  fishery,  they  do  admit  that  if  the  grant  could 
be  shewn  it  would  be  good,  for  prescription  means  usage,  time  out 
of  mind,  founded  on  original  grant. 

The  true  rule  has  not  been  given  to  us  by  the  adverse  coun- 
sel ;  it  is  this,  that  prima  facias  fishery  in  a  navigable  river  is 
common.  He  who  sets  up  an  exclusive  right  must  shew  title  by 
either  grant  or  prescription  presumed  by  the  law  to  be  founded  on 
grant.  Indeed,  if  ownership  of  the  soil  is  essential  to  a  right  of 
several  fishery  it  does  not  seem  strictly  correct  to  say,  that  you 
may  make  title  to  it  by  prescription,  for  soil  cannot  pass  by  pre- 
scription. It  is  more  accurate  to  say,  that  by  prescription  a  right 
of  common  fishery  may  be  destroyed.  That  the  plaintiffs  right 
to  several  fishery  may  be  established  by  grant,  and  the  defend- 
ant's prima  facice  right  of  common  destroyed  by  it  is  fully  proved. 
Chief  Baron  Comyns  says,  "  So  a  man  by  grant  or  prescription 
may  have  several  fishery  in  a  navigable  river."  6  Com.  Dig.  56. 
This  is  his  own  position ;  he  afterwards  cites  the  case  of  Warren 
v.Matthews,  cited  against  us  as  being  contra,  in  his  manner,  when 
he  thinks  the  case  is  not  law. 

Lord  Mansfield  gives  the  same  rule  as  laid  down  by  Comyns. 
4  Bur.  2164.  And  Justice  Yates  says,  in  express  terms,  that 
several  fishery  passes  by  grant  or  prescription.  "We  have  then 
the  authority  of  such  great  men  as  Hale,  Comyns,  Mansfield, 
and  Yates  to  prove  that,  by  the  common  law,  a  right  of  several 


54  NEW  JERSEY  SUPREME  COURT. 


Arnold  v.  Mundy. 


fishery  may  be  granted.  That  the  words  of  these  grants  do  con- 
vey a  several  fishery,  if  by  law  it  may  be  conveyed,  has  been 
fully  demonstrated  by  the  opening  counsel.  It  passes  by  a  grant 
of  the  soil,  which  is  as  well  of  the  water  over  the  soil  as  of  the 
soil  under  the  water.  Har.  L.  T.  17,  19.  5  Bur.  2814.  Davies 
180-1.  It  has  never  been  doubted  but  that  a  convej-ance  of  the 
soil  passes  fishery.  The  doubt  has  been  whether  there  could  bo 
a  right  of  several  fishery  without  the  soil,  (Doug.  56.)  and  the 
modern  opinion  seems  to  be  that  there  cannot.  A  right  of  sev- 
eral fishery  is  not  a  mere  appurtenance  to  the  land,  but  the  land 
itself,  and,  therefore,  when  the  land  passes  so  must  the  fishery. 
Hence  Lord  Hale  and  Chief  Justice  Parsons  say,  that  making  a 
weir  rightfully  makes  a  several  fishery.  So,  by  a  grant  of  all 
waters,  several  fishery  passes.  In  our  case  the  grants  are  drawn 
with  an  evident  intent  to  pass  all  which  the  king  could  grant, 
either  as  land  or  as  water.  Then  if  the  king,  by  the  common 
law,  was  competent  to  grant,  and  did  grant,  a  right  of  several 
fishery,  the  remaining  question  is,  whether  this  right  was  taken 
away  by  statute? 

III.  The  celebrated  Magna  Charta  is  relied  on,  or  rather  two 
sections  of  that  statute,  to  wit,  the  16th  and  23d,  and  when  the 
words  of  these  sections  are  read  it  is  no  small  tax  upon  the 
gravity  of  argument  to  discuss  its  application  to  the  present  case. 

16th  section,  statute  at  large — "No  banks  shall  be  defended  but 
such  as  were  in  defence  in  the  time  of  king  Henry  our  grand- 
father." The  counsel  for  the  defendant  asserts,  that  this  section 
prohibited  Charles  II.  from  granting  to  the  duke  of  York  the 
waters  of  New  Jersey?  Who  can  forbear  a  smile?  What  banks 
are  meant,  the  banks  of  the  Hudson,  Rariton,  Delaware,  Poto- 
mac, or  Mississippi?  What  did  "our  grandfather  king  Henry" 
know  about  them?  The  banks  intended  by  the  parliament  are 
those  of  the  great  navigable  waters  of  England ;  it  is  local  in  its 
provision  on  its  very  face.  How  "defended"  by  sticking  poles 
of  willow  whips  in  a  mud  flat,  over  which  the  smallest  boat  at 
high  water  can  glide,  to  mark  out  an  oyster-bed  at  Amboy !  Is 
this  the  "  defence  "  which  that  statute  was  intended  to  put  down  ? 
No!  the  famous  barons  who  extorted  that  statute  from  John, 
spoke  of  those  artificial  banks  or  mounds  raised  in  navigable 
rivers  in  England,  by  which  not  only  the  natural  passage  of  the 
fish  was  stopped  but  also  the  navigation  interrupted.  This  six- 


NOVEMBER  TERM,  1821.  55 

Arnold  v.  Mundy. 

teenth  section  was  so  illy  penned  and  useless,  and  the  object  so 
much  better  attained  by  subsequent  statutes,  that  even  when 
Bracton  wrote  it  was  considered  out  of  use  in  England.  2  Inst. 
30.  And  Judge  Blackstone,  in  his  tracts,  analyzing  this  famous 
statute,  does  not  even  give  us  either  of  these  sections. 

23d  section,  Statute  at  large,  6 — "All  weirs  shall  be  utterly  put 
down  by  Thames  and  Medway  and  through  all  England,  except 
on  the  sea  coast."  This  in  its  terms  is  local,  confined  to  the 
realm  of  England  ;  and  what  does  it  enact  even  there?  What  is 
a  weir?  It  is  a  dam  across  a  river.  But  did  it  mean,  even 
there,  that  there  should  be  neither  dam  nor  stake  stuck  in  the 
mud  in  any  mud  flat  in  England  ?  It  meant  simply  to  prohibit 
nuisances.  If  the  weir  did  no  injury  it  was  not  within  the  pur- 
view or  intent  of  the  statute.  For  this  exposition,  we  give  the 
authority  of  Coke  and  Hale,  and  the  parliament  of  England. 
Har.  L.  T.  9.  Hale,  after  giving  the  words  of  this  section  of  the 
statute,  says  it  was  meant  to  restrain  nuisances,  and  "  these  nui- 
sances were  such  as  hindered  the  passage  of  boats."  Ib.  22. 
Again — commenting  on  this  and  some  subsequent  statutes,  Lord 
Hale  says,  "  and  by  force  of  these  statutes,  weirs  that  were  pre- 
judicial to  the  passage  of  vessels  were  to  be  pulled  down.  But 
that  did  no  way  disaffirm  the  property,  but  only  remove  the  an- 
noyance." 

The  statutes  25  Edward  III.  chap.  4,  and  1  Henry  IY.  chap. 
12,  were  passed  to  amend  and  explain  these  senseless  sections  ; 
(1  Statute  at  large  260.  76.  429)  and  Lord  Coke,  in  comment- 
ing on  them  all  says,  "  the  generality  of  the  words  of  the  23d 
section  of  Magna  Charta  are  corrected  and  restricted,  by  the 
two  subsequent  statutes,  to  such  erections  as  were  nuisances."  13 
Coke  35. 

In  3  Bur.  1768,  we  find  a  case  of  several  fishery  in  the  river 
Thames,  and  the  court  say  upon  this  subject,  "that  a  man  may 
do  any  thing  with  his  own  which  is  not  a  nuisance"  Here  we 
have  a  sensible  practical  explanation  of  these  old  English  stat- 
utes, and  it  becomes  useless  to  inquire,  whether  any  part  of  the 
local  prohibitory  provisions  of  the  statute  law  of  the  mother 
country  applied  to  this  new  acquisition?  There  was  much  crude 
opinion  in  England  on  the  general  question  of  the  statute  law 
extending  here.  Lord  Holt,  the  great  whig  Chief  Justice  of  Eng- 
land, on  whose  sole  authority  the  general  point  of  the  adverse 


56  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

counsel  rests,  says,  "the  law  of  England  does  not  extend  to  Vir- 
ginia; her  law  is  what  the  king  pleases."  Salk.  666.  IIo  proba- 
bly meant  the  statute  law  of  England,  and  perhaps  he  was  right 
BO  far,  speaking  as  an  English  judge.  The  doctrine  of  the  colo- 
nists here  was,  that  so  much  of  the  statute  law  as  suited  their 
condition  was  brought  over,  as  well  as  the  common  law ;  and  fur- 
ther, they  undertook  to  say  what  did  suit  them.  But  the  first 
proprietors  and  settlers  did  not  repose  themselves  upon  the  stat- 
utes of  England  for  their  rights  and  liberties,  but  took  care  to 
grant  on  the  one  side  and  secure  on  the  other,  in  what  is  called 
the  grants  and  concessions,  all  the  great  principles  of  English 
liberty.  The  great  political  clauses  of  Magna  Charta,  particu- 
larly the  29th  section,  which  is  the  bill  of  rights  of  the  people  of 
England,  is  adopted  word  for  word,  and  incorporated  into  the 
grants  and  concessions.  These  grants  and  concessions  do  in  fact 
exhibit  an  original  contract  between  the  people  and  their  rulers, 
a  complete  free  written  constitution.  The  venerable  ancestors  of 
the  people  of  New  Jersey  have  the  uncommon  honour  of  having 
first  reduced  to  practice  the  theory  of  original  contract  between 
the  governor  and  the  people,  and  of  presenting  to  the  world  the 
first  written  constitution  which  effectually  secured  the  religious 
and  civil  liberty  of  the  settlers.  They  wanted  not  the  protection 
of  English  statutes,  finally  to  be  construed  and  applied,  or  not, 
by  English  judges.  They  demanded,  and  received,  a  constitution 
of  their  own,  securing  to  them  and  their  children  all  the  benefits 
of  a  free  government.  And  yet  the  learned  counsel  accuse  us  of 
advancing  and  advocating  slavish  principles,  because  we  insist 
that  these  miserable  samples  of  rude  legislation  contained  in  tho 
above  sections  of  an  English  statute,  speaking  of  our  grandfather 
Henry,  and  of  the  Thames  and  Medway,  ought  to  be  excluded 
from  all  operation  now  in  New  Jersey.  There  is  nothing,  then, 
in  the  statutes  relied  on  interfering  with  our  title,  and  the  ques- 
tion recurs,  might  not  tho  king,  by  the  common  law,  grant  tho 
soil,  and  with  it  several  fishery  in  the  colony  of  New  Jersey? 

The  dictum  of  Judge  Blackstone  is  relied  on.  2  Black.  Com. 
39.  He  is  the  first  elementary  writer  who  denies  to  the  king 
the  power  of  granting  since  the  statute  of  Magna  Charta,  but  this 
part  of  the  great  work  was  reviewed  by  the  learned  author  after 
Mr.  Hargrave's  observations  upon  his  doctrine  of  fishery,  and  is 
now  carefully  penned,  and  is  expressly  confined  to  a  grant  by 


NOVEMBER  TERM,  1821.  57 

Arnold  v.  Mundy. 

the  king  of  the  franchise  of  free  fishery.  He  does  not  say,  that 
the  king  could  not  grant  the  soil  of  a  river,  and,  of  course,  sev- 
eral fishery  as  part  of  that  soil.  The  distinction  between  several 
and  free  fishery,  in  respect  of  such  grants,  is  palpable  and  obvi- 
ous. The  right  of  free  fishery  is  an  exclusive  right  to  take  fish  in 
a  navigable  river  not  granted  away,  but  belonging  to  the  king  by 
his  prerogative.  In  the  king's  hands,  the  common  right  of  taking 
fish  in  all  the  people  attaches  to  it,  and  he  may  not  now  grant  to 
a  favourite  an  exclusive  right,  and  yet  remain  owner  jure  coronce, 
for  while  the  property  is  in  him,  such  exclusive  right  is  in  deroga- 
tion of  the  common  right  of  the  subject.  But  if  the  king  grants 
the  soil,  the  presumption  of  law  is,  that  he  grants  it  for  good 
reasons,  and  that  no  prejudice  will  flow  from  it,  and  it  immedi- 
ately becomes  the  freehold  of  the  party.  The  grantee  holds  it 
subject  to  the  jus  publicum,  (which  is  not  the  common  right  of 
fishery)  and  must  take  care  that  he  erects  no  nuisance ;  but  under 
this  limitation  it  is  as  much  his  as  the  fast  land,  and  he  cannot 
be  deprived  of  it  without  injustice. 

2  Cruise  297,  also  cited  against  us,  follows  Blackstone,  uses 
his  cautious  language,  and  confines  the  restriction  to  the  fran- 
chise of  free  fishery.  It  is  true  that  Lord  Holt,  in  the  case  of 
Warren  v.  Matthews,  before  alluded  to,  as  reported  in  6  Mod.  73, 
cited  against  us,  is  made  to  say,  that  there  can  be  no  several 
fishery  in  a  navigable  river.  As  it  stands  in  the  book,  it  is  a  mere 
dictum.  What  the  particulars  of  the  case  were  does  not  appear, 
and  the  general  position  is  not  considered  as  law  by  Hale, 
Corny ns,  Mansfield,  and  Yates. 

It  is  asserted  by  the  adverse  counsel,  that  the  old  grants  of 
several  fishery  were  usurpations  contrary  to  the  common  law. 
No  case  has  been,  or  can  be,  shewn  to  warrant  that  assertion. 
The  common  law  seems  admitted  to  be  in  favour  of  the  power 
of  the  king  by  all  the  old  writers.  The  only  question  made  has 
been,  whether  he  was  not  restrained  by  statute  ?  We  have  shewn 
what  that  restraint  is,  and  that  it  is  nothing  more  than  a 
restraint  against  authorizing  a  nuisance. 

Again — it  is  said,  that  although  the  king  may  be  the  owner  of 
this  sort  of  property^,  by  the  common  law,  yet  he  is  not  so  to 
every  intent ;  that  he  holds  the  jure  coronce  as  a  trustee  for  the 
people,  and,  therefore,  cannot  convey  to  their  prejudice.  It  is 
likened  to  the  other  dominions  of  the  crown,  which  they  assert 


58  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

he  has  no  power  to  alienate;  and  they  run  a  distinction  between 
•what  the  king  has  as  king,  in  virtue  of  his  prerogative,  and  what 
he  holds  in  his  own  right,  as  private  property.  For  example,  they 
say  that  he  claims  the  sea,  bays,  rivers,  and  shores  by  his  pre- 
rogative, for  his  people,  and,  therefore,  may  not  grant  to  their 
prejudice.  But  lands  which  accrue  by  escheat  or  forfeiture,  say 
they,  are  his  own,  and  he  may  grant  them  to  whom  he  pleases. 
There  is  no  kind  of  solidity,  either  in  the  reasoning  or  the  dis- 
tinction. At  the  common  law  the  king  is  not,  as  to  his  lands,  a 
trustee  for  the  people,  and  might  alien  the  domains  of  the  crown. 
3  Cruise  14,  sec.  5.  4  Statute  at  large  88.  He  had  the  same,  nay 
a  greater,  power  to  grant  than  a  private  man.  He  was  never 
restrained  until  after  the  revolution  of  1688,  by  the  statute  of 
Anne,  (3  Cru.  565)  which  is  confined  to  his  lands  in  England,  and 
was  passed  long  after  our  title  accrued,  and  that  statute  permits 
the  alienation  for  thirty-three  years. 

By  the  common  law,  all  the  king's  lands  belong  to  him  jure 
corona:.  6  Com.  Dig.  61  (Z>63).  His  natural  character  is  merged 
in  his  political;  he  can,  in  his  own  name  as  an  individual,  hold 
nothing ;  it  is  by  his  prerogative  that  he  takes  by  forfeiture  or 
escheat;  he  claims  and  owns  royal  fish,  as  they  are  called,  by 
his  prerogative,  and  yet  they  may  be  granted.  1  Slack.  Com. 
298.  In  short,  he  is  considered,  by  that  law,  as  having  a  mere 
political  character,  and  claims  and  holds  all  that  .he  has  as  king, 
but  may  grant  at  his  pleasure.  Davies  152.  It  is  palpable  that 
this  course  of  reasoning  would  go  to  prove  that  the  proprietary 
title  to  lands  in  New  Jersey  is  worthless.  Charles  acquired  the 
main  land  a,s  king;  he  was  entitled  to  it  only  by  his  prerogative. 
If  he  was  disabled  to  grant  what  he  held  as  king  he  could  not 
convey  an  acre  of  land. 

But  it  is  again  asserted,  that  the  grantee  of  the  king,  and  those 
claiming  under  him,  hold  subject  to  the  common  right  of  fishery 
vested  by  the  common  law  in  the  people.  This  is  in  truth  the 
pivot  upon  which  the  defendant's  case  rests;  but  the  principles 
we  have  established,  and  the  cases  we  have  produced,  demolish 
it.  We  have  shewn  that  the  grant  of  the  king  passes  the 
very  title  and  propriety  of  the  land  and  water,  absolutely  and 
without  any  such  restriction;  and  that  a  right  of  several  fishery 
passes  with  the  soil.  Where  a  several  fishery  passes,  a  common 
right  of  fishery  cannot  exist;  they  are  utterly  incompatible,  for 


NOVEMBEE  TEEM,  1821.  59 

Arnold  v.  Mundy. 

the  right  of  several  fishery  is  altogether  exclusive.  This  assertion, 
then,  is  but  a  repetition  of  the  fundamental  position,  that  the 
king  cannot  grant  several  fishery  in  a  navigable  river.  What 
authority  has  been  produced?  what  diet um  •  that  the  king's 
grantee  of  the  soil  of  a  river  holds  subject  to  the  right  of  fish- 
ery ?  Lord  Hale  says,  it  is  true,  that  he  holds  subject  to  the  jus 
publicum,  but  he  tells  us  what  that  is:  it  is  the  right  of  "passage 
and  re-passage  with  their  goods  by  water,"  (liar.  L.  T.  36) 
which  must  not  be  taken  from  them  under  pretence  of  a  royal 
grant.  For  this  is  the  right  of  the  people  by  the  law  of  nature, 
rivers  being  great  highways  furnished  by  the  great  Creator  for 
the  use  of  the  human  race.  Common  of  fishery  is  no  more  a 
part  of  the  jus  publicum,  than  common  of  pasturage  belonging 
in  all  the  tenants  of  a  particular  manor. 

Again — it  is  said,  that  the  king  of  England,  alone,  could  do  no 
act  to  divest  the  right  of  the  people,  without  the  aid  of  the  other 
branches  of  the  legislature,  and,  therefore,  his  grants  are  void,  so 
far  as  the  common  right  of  fishery  is  concerned.  This  is  part  of 
the  old  error  the  counsel  for  the  defendant  have  fallen  into  in 
denying  that  the  king  is,  by  the  common  Jaw,  the  true  owner 
and  proprietor  of  every  thing  acquired  in  his  regal  capacity. 
That  he  is  such  absolute  owner  has  been  fully  proved ;  and  that 
he  may,  in  all  cases  in  which  he  is  not  restrained  by  statute, 
convey  in  full  propriety,  has  also  been  demonstrated.  No  author- 
ity has  been1  shewn,  or  can  be  found,  to  support  this  novel  idea  ; 
it  is  utterly  inconsistent  with  the  whole  system  of  the  common 
law,  touching  the  prerogative  of  the  king. 

It  is  also  said,  that  the  great  object  of  these  original  grants 
was  the  settlement  of  the  country,  and  that  they  must  be  con- 
strued so  as  best  to  promote  that  end;  that  the  right  of  fishing, 
being  a  common  right,  must  be  considered  as  reserved  to  them  by 
these  grants,  because  it  is  for  their  benefit  that  it  should  be 
retained.  This  is  a  strange  doctrine,  as  applied  to  grants,  deeds, 
and  muniments  of  title  to  land;  if  it  is  adopted,  and  acted  upon, 
and  improved  by  modern  ingenuity  in  the  best  manner  for  the  good 
of  the  people,  it  will  soon  render  such  instruments  of  little  avail  to 
the  owner.  Fortunately,  however,  it  happens  to  be  in  direct 
repugnancy  to  the  law  of  the  land,  by  which  the  construction  of 
all  solemn  conveyances,  and  of  the  words  inserted  in  them,  have 
been  fully  settled,  so  as  never  to  admit  considerations  of  political 


60  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

policy^  in  any  manner  to  affect  their  legal  operation.  But  if  we 
could  admit,  for  a  moment,  such  considerations  into  this  case,  we 
might  ask,  what  was  the  best  plan  to  6ffect  an  actual  settlement 
of  this  wilderness  in  the  reign  of  Charles  II.?  Surely  it  was  by 
encouraging  a  few  men  of  enterprize  and  capital  to  embark  in, 
and  devote  themselves  to,  the  object.  The  settlers  were  to  be 
brought  from  England,  and  maintained  and  protected  hero  till 
able  to  take  care  of  themselves.  Hence  the  policy  to  encourage 
the  immediate  adventurers  by  most  extensive  grants  and  powers, 
and  of  leaving  it  to  them  to  parcel  out  the  lands  without  restric- 
tion. The  duke  first  sold  to  two,  who  would  probably  never  have 
purchased  if  the  powers  and  rights  of  the  original  grant  from  the 
king  had  been  curtailed;  these  sold  to  the  twelve;  they  to  the 
twenty-four;  and  they  again  to  the  forty-eight,  on  the  original 
terms,  leaving  them  to  make  their  own  contracts  with  future 
adventurers.  And  even  as  to  the  sub-purchasers,  the  small  pro- 
prietors, surely  the  right  now  in  discussion  being  secured  to  the 
landholder  would  be  an  additional  inducement  to  substantial 
purchasers  to  fix  themselves  on  the  waters  of  the  territory. 

It  is  further  objected,  that  we  have  not  been  able  to  shew  that 
the  king  of  England  has  ever  granted  a  right  of  several  fishery 
.in  a  navigable  river  since  the  statute  of  Magna  Charta.  If  this 
be  true,  which  is  denied,  it  is  because  several  fishery  is  dependant 
on  the  ownership  of  the  soil,  and  because  all  the  lands  of  England, 
especially  those  on  their  rivers  and  the  sea  shore,  have  been 
granted  and  parcelled  out  ever  since  the  time  of  the  Norman 
conqueror.  England  being  an  island,  the  English  have  been  a 
commercial  nation  time  out  of  mind,  and  the  jurisdiction  and 
property  of  their  great  rivers,  from  early  times,  has  been  distrib- 
uted among  their  great  corporations.  Sir  John  Davies  says, 
"the  city  of  London,  by  charter  from  the  king,  hath  the  river 
Thames  granted  to  them,  but  because  it  was  conceived  that  the 
soil  and  ground  of  the  river  did  not  pass  by  that  grant,  they 
purchased  another  charter,  by  which  the  king  granted  to  them  sol  urn 
et  fundum  of  the  said  river"  He  does  not  say  which  of  the  kings 
gave  this  charter,  but  it  is  not  likely  that  both  grants  were  prior 
to  Magna  Charta. 

The  case  of  Bulbrock  v.  Goodire  proves  that  several  fishery 
is  now  held  in  the  Thames  by  individuals  claiming  under  the 
corporation.  3  Bur.  1768.  In  3  Chitty's  Criminal  Law  974,  we 


NOVEMBER  1EKM,  1821.  61 

Arnold  v.  Mundy. 

have  an  indictment  for  taking  oysters  from  the  oyster  fishery  of 
the  borough  of  Lin  Beges  in  the  county  of  Norfolk,  within  the 
limits  and  precincts  of  the  port  of  Lin  Reges.  This,  no  doubt, 
is  the  case  of  several  fishery  belonging  to  that  corporation,  as 
owners  of  the  river.  In  Dames  155,  this  case  is  stated:  "king 
Henry  VIII.  granted  to  Strangeways  totam  illam  liberam  pisca- 
riam  vocatum  the  fleet  in  Abbotsbury,  which  is  a  bay  and  creek 
of  the  sea;"  and  he  adds,  "this  was  a  several  fishery  on  a  branch 
of  the  sea."  The  assertion  is  then  incorrect  in  point  of  fact,  and 
it  is  not  doubted,  but  that  if  we  had  a  full  collection  of  royal 
grants  to  corporations  and  individuals  since  Magna  Charta, 
many  would  be  found  granting  the  solum  et  fundum  of  navigable 
rivers  in  England. 

It  has  been  further  asserted,  that  the  people  have  always  ex- 
ercised the  right  of  taking  fish  j  and  a  grantee  of  the  proprietors 
now,  for  the  first  time,  has  set  up  this  pretence.  There  is  no 
foundation  in  fact  for  either  branch  of  this  assertion.  That  tbe 
people  have  been  in  the  habit  of  taking  oysters  from  the  unap- 
propriated beds  may  be  true,  but  that  such  a  right  has  been  ex- 
ercised in  places  where  the  soil  of  the  river  has  been  sold  and 
located  is  denied,  and  has  not  been  proved.  It  is  a  matter  of 
fact,  and  ought  to  have  been  proved.  The  defendant  gave  some 
evidence,  that  in  former  times,  before  the  survey,  the  Wood- 
bridge  people  insisted  on  their  right,  and  so  did  the  owner  of  our 
main  farm  insist  on  his,  and  resist  theirs ;  but  it  is  well  known 
that  the  Woodbridge  men  claimed  the  right  of  fishing  not  as  a 
right  of  common,  but  under  their  grant  from  the  proprietors, 
commonly  called  the  Woodbridge  charter.  "When  this  action  was 
brought,  they  discovered  that  the  charter  upon  which  they  relied 
did  not  cover  this  oyster-bed,  and  then  they,  for  the  first  time, 
by  the  advice  of  their  learned  counsel,  took  this  new  ground  of 
common  right.  There  is  not  a  particle  of  evidence  that  they 
ever  before  asserted  a  title  by  general  right  of  common  fishery; 
on  the  contrary,  they  claimed  by  grant,  as  the  plaintiff  docs. 
The  people  of  this  state  exercise  a  right  of  fowling  and  hunting 
in  the  waste  of  the  proprietors.  Surely  when  the  proprietors  sell, 
and  the  purchaser  encloses  and  improves,  such  a  right  could  not, 
remain  ;  and  yet  that  is  precisely  the  same  sort  of  common  right 
as  that  exercised  by  our  adversaries  in  regard  to  fishing. 

As  to  this  being  a  new  claim,  now  for  the  first  time  got  up,  the 


62  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

documents  produced  should  have  shielded  us  from  this  reproach  ; 
we  have  shewn  many  grants  of  the  soils  of  the  rivers  from  the 
public  records,  and  many  more  from  the  earliest  times  no  doubt 
exist.  Is  it  not  a  notorious  fact,  that  numerous  fisheries  have 
been  held  on  all  our  great  rivers  for  more  than  a  century  without 
dispute  ?  Many  actions  of  trespass  have  been  brought  in  this 
court,  and  heavy  damages  recovered  for  taking  fish  from  such 
several  fisheries ;  not  merely  for  hauling  on  the  land,  but  for  tak- 
ing the  fish  swimming  in  the  river.  The  doctrine  upon  which  this 
nonsuit  was  ordered  will  destroy  all  this  species  of  property 
from  Powles  Hook  to  Cape  May.  It  is  well  known  that  seines 
may  be  drawn  without  touching  the  land.  Shad  fisheries  of 
immense  value,  which  have  been  transmitted  from  father  to 
son,  time  out  of  mind,  are  destroyed  at  a  stroke,  though  the 
property  in  them  has  been  admitted  by  the  legislature  in  all  their 
acts  taxing  and  regulating  them.  The  argument,  then,  from  pos- 
session and  usage,  is  altogether  on  the  side  of  the  plaintiff. 

This  doctrine  of  a  right  of  several  fishery  is  not  confined  to 
New  Jersey;  it  is  recognized  and  protected  in  many  of  our 
sister  states.  In  Massachusetts,  the  fisheries  all  belong  to  the 
public  corporations,  who  distribute  them  out  among  the  different 
towns.  This  proves  that  they  were  considered  as  passing  by 
their  charters,  and  that  there  is  no  right  of  common  in  these 
fisheries  in  the  whole  mass  of  the  people.  In  Connecticut,  as 
early  as  the  year  1790,  the  Supreme  Court,  in  the  case  of  Adgate 
v.  Story,  determined  that  the  adjoining  proprietor  might  main- 
tain trespass  against  one  who  drew  a  seine  in  a  navigable  river 
fronting  his  land.  1  Swift's  System  343.  In  Pennsylvania,  it  has 
been  judicially  admitted,  that  a  several  fishery  might  have  been 
granted  by  the  proprietors  before  the  extinction  of  their  title, 
or  by  the  state  since.  2  Sin.  475. 

The  act  of  the  legislature  of  Pennsylvania  vesting  in  the  com- 
monwealth the  estates  of  the  late  proprietors,  grants  all  the  soil, 
royalties,  and  franchises  granted  by  Charles  II.  to  William  Penn, 
and  the  Supreme  Court  in  the  cases  just  cited,  admit  that  the 
right  of  several  fishery  passed.  1  Dal.  Penn.  Laws  822. 

In  Maryland,  upon  Lord  Baltimore's  grant,  it  was  held,  that 
the  king  had  power  to  grant  several  fishery,  and  that  the  forms 
of  that  grant,  not  so  comprehensive  as  ours,  did  convey  it.  The 
only  doubt  was  on  a  proviso  reserving  the  common  right  of 


NOVEMBER  TERM,  1821.  63 

Arnold  v.  Mundy. 

fishery  to  the  people  of  England.  Har.  &  M' Hen.  Rep.  564.  And, 
finally,  we  find  the  settlers  in  West  Jersey  contracting  for  the 
right  of  common  of  fishery  with  the  proprietors,  and  the  pro- 
prietors granting  it  to  them.  Learning  &  Spicer  390.  Bat  no 
each  grant  has  ever  been  made  by  the  eastern  proprietors,  and 
the  concession  and  acceptance  of  it  shews  that,  in  the  opinion 
of  both  parties,  it  did  not  exist  without  it. 

IV.  The  only  remaining  point  to  be  discussed  is,  whether  the 
title  of  several  fishery  was  surrendered  and  given  up  to  queen 
Anne  when  the  proprietors  yielded  up  to  her  their  jurisdiction 
and  powers  of  government?  This  argument  was  delicate  and 
dangerous,  because  it  gives  up  at  once  all  the  rest  of  the  case, 
admitting  that  the  right  in  question  did  pass  by  the  original 
grants  to  the  proprietors;  for  if  it  did  not  exist  it  could  not  be 
surrendered.  And  here  it  is  to  be  remarked,  that  the  crown  of 
England  executed  every  reasonable  act  of  further  assurance  to 
protect  and  enforce  the  grants  to  the  proprietors  while  the  gov- 
ernment remained  in  the  proprietors,  as  the  documents  laid  before 
the  court  fully  prove.  The  only  trouble  they  met  with  was  from 
the  duke's  governors  in  New  York.  When  he  became  king,  he 
was  too  much  engaged  in  his  own  plans  at  home  to  spend  time  in 
the  affairs  of  his  colonies ;  but  after  the  revolution,  and  towards 
the  latter  end  of  the  reign  of  "William  III.  the  British  court 
betrayed  the  same  disposition  which  had  before  appeared  in 
regard  to  other  colonies,  to  infringe  the  liberal  charters  which 
had  been  first  granted  to  the  adventurers  in  America;  and  the 
crown  lawyers  began  to  question  the  validity  of  that  part  of  the 
grant  of  Charles  II.  which  conveyed  the  powers  of  government 
in  extenso.  And  so  many  impediments  to  the  liberal  views  and 
exertions  of  the  proprietors  to  settle  the  country  were  thrown 
in  the  way,  that  they  judged  it  most  expedient  to  open  a  treaty 
for  the  surrender  of  the  government  to  the  crown  of  England, 
so  far  as  related  to  the  great  political  powers  of  government. 

Learning  &  Spicer  588,  give  the  propositions  of  the  proprie- 
tors. In  the  9th  section  it  proposed,  that  the  proprietors  may  be 
lords  of  the  soil  and  hold  courts.  Ib.  595,  the  answer  of  the 
board  of  trade  is,  that  they  have  no  objection  to  this,  in  case 
those  officers  be  like  such  as  constitute  the  courts  Leet  and 
Baron  in  England.  Ib.  590,  in  section  13th,  the  proprietors 
reserve  all  royalties,  enumerating  them,  "to  remain  to  the  pro- 


64  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

prietors  with  all  other  privileges  and  advantages,  as  amply  as  in  the 
grant  and  confirmation  to  them  of  the  I4th  March,  1682."  Ib.  596, 
the  answer  of  the  board  is,  "  This  article  may  bo  reasonable, 
except  as  to  the  goods  and  chattels  of  traitors,  &c.,  which  is 
matter  of  state;"  and  they  add  these  significant  words,  "Nor 
can  right  accruing  to  the  proprietors  from  the  seas  adjacent  be 
well  circumscribed." 

With  this  protocol  before  us,  we  proceed  to  the  final  treaty, 
which  is  found  in  the  instrument  called  tbe  surrender.  This 
instrument  recites  the  original  grants,  and  that  the  king  did 
grant  to  the  duke,  and  he  to  the  proprietors,  "full  and  absolute 
power  and  authority  to  appoint  governors,  and  to  correct,  punish, 
pardon,  govern,  and  rule  all  the  adventurers,  according  to  such  laws 
&c.  as  the  duke  or  his  assigns  should  establish,  with  power  to  use  and 
exercise  martial  law  in  case  of  insurrection,  rebellion,  or  mutiny, 
and  to  make  war  against  all  persons  "who  should  attempt  to  inhabit 
without  the  leave  of  the  duke  or  his  assigns."  Learning  &  Spicer 
609,  12,  13.  It  then  recites,  "that  her  majesty  queen  Anno 
had  been  advised  that  the  proprietors  have  no  power  to  exe- 
cute any  of  the  said  powers,  but  that  the  same  belonged  to  her 
majesty  in  right  of  her  crown."  It  further  recites,  "  that  the 
proprietors,  being  desirous  to  submit  themselves  to  her  majesty, 
are  willing  to  surrender  all  their  pretences  to  the  said  powers  of 
government."  Then  they  do  surrender  and  yield  up  to  the  queen 
"all  these  the  said  powers  and  authorities  to  correct,  punish,  par- 
don, govern  and  rule ;"  and  also  the  right  to  make  laws  and  appoint 
governors ;  "  and  also  the  powers  to  use  and  exercise  martial  law, 
and  to  make  war,"  &c. 

Is  it  not,  then,  self-evident  that  this  deed  of  surrender  only 
embraced  the  great  political  powers  of  government  which,  as 
the  country  was  becoming  populous,  were  inconsistent  with 
dependence  on  the  British  crown;  and  that  it  did  not  convey  or 
surrender  any  estate,  property,  franchise,  royalty,  or  privilege 
appertaining  to  the  soil,  rivers,  and  bays  which  entered  essen- 
tially into  the  estimate  of  the  value  of  the  soil,  and  had  become 
their  property  ?  It  was  so  understood  by  the  queen  and  her 
council.  Immediately  after  the  surrender,  Lord  Cornbury  was 
appointed  the  first  royal  governor.  He  received  written  instruc- 
tions, the  36th  section  of  which  recommends  passing  such  laws 
"as  will  secure  the  right  of  property  of  the  soil  to  the  proprie- 


NOVEMBER  TERM,  1821.  65 


Arnold  v.  Mundy. 


tors,"  and  "all  such  privileges  as  were  expressed  in  the  conveyance 
to  the  duke  of  York,  excepting  only  the  right  of  government"  Learn- 
ing &  Spicer  628,  sec.  36. 

Now,  unless  this  court  is  prepared  to  pronounce  that  the  claim 
of  right  of  common  of  all  fish  is  one  of  those  great  political  rights 
which  pertained  essentially  to  the  crown  of  England,  and  a  part 
of  the  right  of  government,  it  cannot  be  within  that  deed  of  sur- 
render. Indeed,  unless  the  words  of  the  deed  of  surrender  are 
disregarded  as  well  as  the  manifest  intent  and  meaning  of  the 
contracting  parties,  there  is  nothing  in  this  objection. 

KIRKPATRICK  C.  J.  This  is  an  action  of  trespass  for  entering 
upon  the  plaintiff's  oyster-bed  in  the  mouth  of  the  Rariton,  at 
Perth  Amboy,  and  taking  and  carrying  away  his  oysters  there 
planted.  It  was  brought  to  trial  at  the  Middlesex  circuit,  in 
December  last,  when,  upon  the  case  made  out,  the  plaintiff  was 
nonsuited ;  and  upon  coming  in  of  the  Posted  there  was  a  rule 
to  shew  cause  why  that  nonsuit  should  not  be  set  aside  and  a 
new  trial  granted. 

It  appeared  in  evidence,  upon  the  trial,  that  the  plaintiff,  on 
the  14th  of  February,  1814,  had  purchased  in,  and,  at  the  time 
of.  the  supposed  trespass,  was  in  possession  of,  a  certain  farm, 
commonly  called  NevilFs  farm,  containing  one  hundred  and 
seventy-five  acres,  or  thereabouts,  lying  on  the  river  Rariton, 
opposite  to  this  oyster-bed,  and  extending,  according  to  the  words 
of  the  deed,  to  the  bank  of  the  river;  that  one  Joseph  Codding- 
ton,  who  had  before  owned  and  possessed  the  said  farm,  and 
under  whom  the  plaintiff  held,  had,  twenty  years  ago,  and  more, 
and  while  so  in  possession,  staked  off  a  part  of  the  oyster-bed 
in  question,  and  that  part  of  it,  too,  from  which  these  oysters 
were  taken,  and  had,  during  his  time  there,  claimed  the  exclu- 
sive right  of  taking  oysters  upon  the  bed  so  staked  off;  but  the 
people  had  always  disputed  that  right,  had  entered  upon  it,  and 
taken  oysters  from  it,  when  they  pleased,  and  if  opposed  by 
Coddington,  that  the  strongest  usually  prevailed. 

And  it  further  appeared,  that  the  plaintiff,  soon  after  he  came 
into  the  possession  of  the  said  farm,  staked  off  the  present  bed, 
being  greater,  but  including  Coddington's,  began  to  plant  oysters 
upon  it,  and  has  continued  to  plant  more  or  less,  at  the  proper 
seasons,  every  year  since  that  time ;  that  some  of  the  stakes, 

VOL.  I.  X 


66  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

by  which  it  is  so  staked  off,  stand  below  low  water  mark,  but 
that  they  are  so  slender  as  to  oppose  no  obstruction  to  the  navi- 
gation of  the  river,  even  with  the  smallest  craft ;  that  this  bed  is 
about  fifty  yards  below  common  low  water  mark;  the  tide  ebbs 
and  flows  over  it;  it  is  frequently  bare  at  the  full  and  change  of 
the  moon,  and  commonly,  though  not  always  so,  in  the  full  and 
spring;  that  there  have  always  been  oysters  upon  it,  as  well  as 
upon  the  other  beds  in  these  waters,  and  that  the  space  between 
it  and  the  shore  is  what  they  call  a  mud  flat,  commonly  covered 
with  water,  but  not  a  channel  for  vessels  or  other  craft  usually 
plying  in  that  river.  And  it  further  appeared,  that  the  plaintiff, 
on  the  3d  of  April,  1818,  by  virtue  of  a  warrant  of  location  from 
the  proprietors  of  East  Jersey,  caused  a  survey  to  be  made  for 
himself  there  of  41.59  acres  of  land  covered  with  water,  includ- 
ing a  certain  survey  of  wharves  formerly  made  to  one  Son  mans, 
and  leaving  for  his  survey  35.59  acres,  including  the  oyster-bed 
in  question.  And  although  it  appeared,  that  this  survey  had  been 
made  before  the  supposed  trespass,  and  had  been  approved  and 
recorded  in  due  form,  yet  it  did  not  appear,  that  such  approving 
and  recording  had  been  before  the  said  trespass,  the  time  of  tho 
recording  not  appearing  upon  the  record.  And  it  further  ap- 
peared in  evidence,  that  the  defendant  had  entered  upon  the  said 
bed,  so  staked  off,  and  taken  oysters  there,  at  the  time  in  the 
declaration  set  forth.  And,  indeed,  it  was  admitted  by  the  defend- 
ant himself,  that  he,  together  with  others,  had  so  done,  but 
merely  with  a  view  of  trying  the  plaintiff's  pretended  right,  and 
not  with  a  view  of  injuring  the  bed,  or  taking  the  oysters  further 
than  was  necessary  for  this  purpose. 

Upon  this  state  of  facts,  the  defendant  moved  for  a  nonsuit — 
1.  Because  the  plaintiff  had  shewn  no  title  arising  from  posses- 
sion only,  that  is,  an  exclusive  and  adverse  possession.  2.  Be- 
•cause  he  had  shewn  no  title  under  the  proprietors,  it  not  having 
Appeared  that  his  survey  had  been  approved  and  recorded  before 
•the  supposed  trespass  was  committed.  3.  Because  the  proprie- 
tors themselves  had  no  title  which  they  could  convey,  even  if 
(the  form  of  conveyance  had  been  complete.  Upon  the  last  of 
these  reasons  the  plaintiff  was  called.  But  yet,  still,  in  shewing 
cause  upon  this  rule,  the  defendant's  counsel  have  insisted  upoc. 
the  first  and  second  reasons  also,  against  the  claim  of  tho  plain- 
tiff, which  he  still  maintains,  so  that  it  becomes  necessary  to  look 
a  little  into  each  of  them  in  their  order.  And 


NOVEMBER  TERM,  1821.  67 

Arnold  v.  Mundy. 

1.  As  to  the  mere  possession.     This  is  no  other  way  proved 
than  by  shewing  the  conveyance  for,  and  the  possession  of,  the 
Nevill  farm  upon  the  shore  opposite  to  this  oyster-bed,  extending, 
to  make  the  most  of  it,  to  the  water's  edge  only ;  and  by  shew- 
ing further,  the  staking  off  of  the  said  bed,  the  planting  of  oysters 
upon  it,  and  sometimes  fishing  and  taking  oysters  there,  as  other 
people  also  did,  the  claim  of  exclusive  right  notwithstanding. 

Now,  upon  this  it  is  to  be  observed,  that  though  a  grant  of 
land  to  a  subject  or  citizen,  bounded  upon  a  fresh  water  stream 
or  river  not  navigable,  and  where  the  tide  neither  ebbs  nor 
flows,  extends  to  the  channel  of  such  river,  usque  ad  filum  aquce, 
as  they  have  it  in  our  old  books ;  yet  that  a  grant  of  land 
bounded  upon  a  river  or  other  water  which  is  navigable,  and 
where  the  tide  does  ebb  and  flow,  extends  to  the  edge  of  the 
water  only,  that  is  to  say,  to  high  water  mark,  and  no  further. 
See  the  case  of  the  river  Banne,  (Davies  152,  155);  Har.  L.  T. 
5 ;  Carter  v.  Marcotl,  (Bur.  2162).  All  pretence  of  possession, 
therefore,  in  this  case,  as  being  connected  with,  and  appurtenant 
to,  the  adjacent  land,  must  fail.  The  grant  for  that  could 
extend  only  to  high  water  mark,  and  it  could,  therefore,  carry 
with  it  no  part  of  the  adjacent  land  covered  with  water.  And 
if  the  plaintiff  would  set  up  a  possession  founded  upon  the  stak- 
ing off  the  bed,  planting  oysters  upon  it,  and  sometimes  fishing 
there,  even  if  it  were  a  subject  matter  that  could  be  taken  pos- 
session of  in  that  way,  that  possession  has  not  been  proved  to 
be  either  so  complete,  so  exclusive,  or  so  continued,  as  to  estab- 
lish a  right  against  those  having  equal  claim  with  himself.  He 
pretends  to  no  prescription,  none  such  exists  in  this  country;  he 
pretends  to  no  grant,  none  has  even  been  mentioned.  He  places 
himself  in  the  situation  of  a  fisherman,  who,  because  he  has 
fished  for  many  years,  would  claim  the  exclusive  possession  of 
the  waters,  and  the  exclusive  right  of  fishing  in  them.  Upon 
the  ground  of  possession  merely,  then,  I  think  the  plaintiff  can- 
not stand.  But  the  nonsuit  cannot  be  maintained  upon  this 
alone,  because  he  sets  up  another  title. 

2.  As  to  the  form  of  the  conveyance  and  the  operation  of  the 
purvey.    The  proprietors  of  East  Jersey  are  tenants  in  common 
of  the  soil;  their  mode  of  severing  this  common  estate  is  by 
issuing  warrants,  from  time  to  time,  to  the  several  proprietors, 
according  to  their  respective  rights,  authorizing  them  to  survey, 


68  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

and  appropriate  in  severally,  the  quantities  therein  contained. 
Such  warrant  does  not  convey  a  title  to  the  proprietor,  he  had 
that  before ;  it  only  authorizes  him  to  sever  so  much  from  the 
common  stock,  and  when  so  severed,  by  the  proper  officer,  it 
operates  as  a  release  to  him  for  so  much.  This  is  the  case  when 
the  proprietor  locates  for  himself.  When  he  sells  his  warrant  to 
another,  that  other  becomes  a  tenant  in  common  with  all  the  pro- 
prietors pro  tanto,  and,  in  the  same  manner,  he  proceeds  to  con- 
vert his  common,  into  a  several,  right.  Regularly  there  is  a  deed 
of  conveyance  upon  the  transfer  of  this  warrant  for  so  much  of 
the  common  property  and  that  deed  of  conveyance,  and  the 
survey  upon  the  warrant,  is  the  title  of  the  transferee.  It  is 
true,  that  the  survey  must  be  inspected  and  approved  by  the 
board  of  proprietors 'and  must  be  carefully  entered  and  kept  in 
the  secretary's  office,  or  in  the  office  of  the  surveyor-general  of 
the  division,  but  this  is  for  the  sake  of  security,  order,  and  regu- 
larity only,  and  is,  by  no  means,  the  passing  of  the  title.  It 
proves  that  the  title  has  already  passed,  but  it  is  not  the  means 
of  passing  it.  It  may  be  likened  to  the  acknowledgment  of  a 
deed  by  a  femme  covert.  Her  deed  cannot  prevail  against  her, 
unless  such  acknowledgment  be  regularly  made  and  recorded ; 
yet  such  acknowledgment  does  not  pass  the  title,  the  deed  has 
already  done  that,  and  it  operates  from  the  day  of  its  date. 

The  view  which  has  been  taken  of  this  subject,  and  so  much 
insisted  upon  by  one  of  the  defendant's  counsel,  I  think  is  quite 
too  narrow.  He  has  placed  himself  upon  the  third  section  of  the 
act  of  January  5,  1787,  "for  the  limitation  of  suits  respecting 
titles  to  lands."  That  section  enacts,  "that  a  survey  made, 
inspected,  and  approved  by  the  council  of  proprietors,  and  by 
their  order  recorded  in  the  secretary's  office,  or  in  the  surveyor- 
general's  office,  shall,  from  and  after  such  record  is  made,  pre- 
clude and  forever  bar  such  proprietors  from  any  demand  thereon, 
any  plea  of  deficiency  of  right,  or  otherwise,  notwithstanding." 

Novy  this  is  a  statute  merely  for  the  limitation  of  suits.  It  is 
made  for  the  benefit  of  him  that  has  the  survey ;  if  he  procures 
it  to  be  inspected,  approved,  and  recorded,  it  is  a  bar  against  the 
proprietors  and  those  holding  under  them  ;  if  he  does  not  do  so, 
it  is  no  bar,  but  stands  just  where  it  did  before  the  statute  was 
made.  The  statute  is  not  imperative  upon  him  that  has  the 
survey  to  procure  it  to  be  inspected,  approved,  and  recorded;  it 


NOVEMBER  TERM,  1821.  69 

Arnold  v.  Mundy. 

does  not  make  it  void  in  case  he  does  not  do  so,  but  leaves  it 
where  it  was  before,  and  he  loses  his  bar. 

Let  us  see,  then,  how  those  surveys  were  viewed  before  this 
statute.  We  shall  be  enabled,  pretty  satisfactorily,  to  do  this,  by 
looking  into  the  act  of  March  27, 1719.  In  the  tenth  section  of 
that  act,  it  is  enacted,  "that  the  surveyor-general  shall  hold  a 
public  office,  in  which  shall  be  carefully  entered  and  kept  the 
surveys  of  all  lands  thereafter  to  be  made;  that  such  entries  shall 
be  considered  as  matter  of  record,  and  may  be  pleaded  as  evi- 
dence in  any  of  the  courts,"  &c.  but  it  prescribes  no  time  within 
which  they  shall  be  entered,  nor  does  it  make  them  void  if  not 
so  entered.  In  the  eleventh  section  of  the  same  act  it  is  recited, 
"that  great  inconveniences  have  happened  by  making  and  not 
recording  of  surveys,  whereby  many  have  not  only  got  lands  sur- 
veyed which  have  been  formerly  surveyed,  not  knowing  of  any 
former  survey,  but  have  settled,  and  made  great  improvements 
on  the  same,  and  have  been  afterwards  ousted  thereof;"  and  then 
it  is  provided,  "  that  surveys  heretofore  made  shall  be  brought 
in  and  recorded  within  a  certain  time,  or  for  ever  after  to  be  void 
and  of  no  effect  as  against  succeeding  surveys  of  the  same  lands 
duly  recorded."  Now,  if  those  prior  surveys  had  been  of  no 
effect  until  they  were  approved  and  recorded,  how  could  those 
who  had  settled  and  improved  under  posterior  surveys  be  ousted 
by  them?  or  how  could  the  evil  here  complained  of  ever  have 
happened  at  all?  and  if  they  had  effect,  that  effect  is  no  way 
impaired  by  this  act,  unless  it  be  against  posterior  surveys  of  the 
same  lands,  duly  approved  and  recorded.  The  truth  is,  I  believe, 
that  the  survey  pf  the  proper  officers,  under  a  warrant  duly  issued 
for  that  purpose,  has  always  been  considered  as  the  act  of  sever- 
ance; the  inspecting,  approving,  and  recording,  as  relating  back 
to  that  act;  and  the  party  surveying, as  having  an  estate  in  sev- 
eralty  from  that  time.  And,  of  course,  except  in  the  case  of 
posterior  surveys,  the  time  of  inspecting,  approving,  and  record- 
ing has  not  been  thought  material.  And,  as  to  the  mode  of 
partition,  however  necessary  it  may  have  been  in  other  cases  of 
tenancy  in  common,  that  it  should  be  made  by  deed;  yet  in  this 
proprietary  estate,  upon  locations  of  this  kind,  I  believe  it  never 
has  been  so  done.  As  to  the  form  of  the  conveyance,  therefore, 
in  this  respect,  the  defendant's  objection  cannot  prevail. 

3.  As  to  the  right  of  the  proprietors  to  convey.     This  is  the 


70  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

great  question  ID  the  cause,  and  though  we  have  taken  time  since 
last  term  to  look  into  it,  yet  I  must  confess,  for  myself,  that  1 
have  not  done  so  in  so  full  and  satisfactory  a  manner  as  could 
have  been  wished;  and  my  apology  must  be,  that  during  a  very 
great  part  of  the  vacation,  I  have  been  necessarily  abroad, 
attending  to  other  official  duties,  and  during  the  time  I  had 
assigned  to  myself  for  this  purpose,  I  have  been  so  much  indis- 
posed as  not  to  be  able  very  satisfactorily  to  attend  to  business  of 
any  kind.  I  have,  nevertheless,  so  far  looked  into  it  as  to  satisfy 
myself  of  the  principle  that  must  prevail. 

The  grant  of  Charles  II.  to  the  duke  of  York  was  not  only  of 
territory  but  of  government  also.  It  was  made,  not  with  a  view 
to  give  that  territory  and  that  government  to  the  duke,  to  be 
enjoyed  as  a  private  estate,  but  with  a  view  to  the  settlement  of 
it  as  a  great  colony,  to  the  enlargement  of  the  British  empire,  and 
the  extension  of  its  laws  and  dominions.  In  construing  this  grant, 
therefore,  we  ought  always  to  have  our  eye  fixed  upon  these 
great  objects.  If  we  shall  find  some  things  contained  in  it,  which 
by  the  laws  of  England,  as  well  as  of  all  other  civilized  coun- 
tries, and  even  by  the  very  law  of  nature  itself,  are  declared  to 
be  the  common  property  of  all  men,  then,  by  every  fair  rule  of 
construction,  we,  are  to  consider  these  things  as  granted  to  h\mr 
as  the  representative  of  the  sovereign,  and  as  a  trustee  to  support 
the  title  for  the  common  use,  and  especially  so,  if  we  shall  find 
that  the  king  himself  had  no  other  dominion  over  them. 

The  grant  is  not  only  of  all  lands,  but  of  "all  rivers,  harbours, 
waters,  fishings,  &c.  and  of  all  other  royalties,  so  far  as  the  king 
had  estate,  right,  title,  or  interest  therein,  together  with  full  and 
absolute  power  and  authority  to  correct,  punish,  pardon,  govern, 
and  rule  all  such  the  subjects  of  the  king,  his  heirs,  and  success- 
ors, as  should,  from  time  to  time,  adventure  themselves  into  tho 
said  territory ;"  and  for  this  purpose  to  make  statutes,  ordinances, 
&c.  provided  the  same  should  not  be  contrary  to  the  laws,  statutes, 
and  government  of  England,  but  saving  to  the  inhabitants, 
nevertheless,  the  right  of  appeal,  and  to  the  crown  the  right  of 
hearing  and  determining  the  same.  The  duke  was  to  govern, 
but  ho  was  to  govern,  substantially,  according  to  the  principles 
of  the  British  constitution.  The  colonists  were  to  be  governed 
by  him,  but,  by  tho  very  words  of  tho  charter,  they  were  to  be 
British  subjects,  and  to  enjoy  the  protection,  liberty,  and  privi- 


NOVEMBER  TERM,  1821.  71 

Arnold  v.  Mundy. 

leges  of  the  British  government.  In  order  to  accomplish  tboso 
great  objects,  the  king  selected  his  royal  brother,  and  granted 
to  him  all  the  rights  which  he  himself  had,  or  could  exercise  in 
and  over  this  great  territory,  saving  to  himself  only  the  right 
of  hearing  appeals.  Those  things,  therefore,  which  were,  prop- 
erly speaking,  the  subjects  of  property,  and  which  the  king  him- 
self could  divide  and  grant  severally  to  the  settlers,  the  duke, 
by  virtue  of  this  charter,  could  also  divide  and  grant;  but  those 
things  which  were  not  so, ,and  which  the  king  could  not  grant, 
but  held  for  the  common  use,  the  duke  necessarily  held  for  the 
same  use,  and  in  the  same  way. 

Let  us  see,  then,  upon  what  principle  the  king  held  the  sub- 
ject matter  of  this  inquiry ;  what  right  he  had  in  it,  and  how 
far  he  could  dispose  of  it. 

Every  thing  susceptible  of  property  is  considered  as  belonging 
to  the  nation  that  possesses  the  country,  and  as  forming  the  entire 
mass  of  its  wealth.  But  the  nation  does  not  possess  all  those 
things  in  the  same  manner.  By  very  far  the  greater  part  of  them 
are  divided  among  the  individuals  of  the  nation,  and  become  pri- 
vate property.  Those  things  not  divided  among  the  individuals 
still  belong  to  the  nation,  and  are  called  public  property.  Of  these, 
again,  some  are  reserved  for  the  necessities  of  the  state,  and  are 
used  for  the  public  benefit,  and  those  are  called  "  the  domain  of 
the  crown  or  of  the  republic;"  others  remain  common  to  all  the 
citizens,  who  take  of  them  and  use  them,  each  according  to  his 
necessities,  and  according  to  the  laws  which  regulate  their  use, 
and  are  called  common  property.  Of  this  latter  kind,  according 
to  the  writers  upon  the  law  of  nature  and  of  nations,  and  upon 
the  civil  law,  are  the  air,  the  running  water,  the  sea,  the  fish, 
and  the  wild  beasts.  Vattel  lib.  i,  20.  2  Slack.  Com.  14.  But 
inasmuch  as  the  things  which  constitute  this  common  property 
are  things  in  which  a  sort  of  transient  usufructuary  possession, 
only,  can  be  had ;  and  inasmuch  as  the  title  to  them  and  to  the 
soil  by  which  they  are  supported,  and  to  which  they  are  appur- 
tenant, cannot  well,  according  to  the  common  law  notion  of  title, 
be  vested  in  all  the  people ;  therefore,  the  wisdom  of  that  law 
has  placed  it  in  the  hands  of  the  sovereign  power,  to  be  held,  pro- 
tected, and  regulated  for  the  common  use  and  benefit.  But  still, 
though  this  title,  strictly  speaking,  is  in  the  sovereign,  yet  the 
use  is  common  to  all  the  people.  This  principle,  with  respect 


72  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mnndy. 

to  rivers  and  arras  of  the  sea,  is  clearly  maintained  in  the  case 
of  the  royal  fishery  upon  the  Banne,  in  Ireland,  in  Sir  John  Da- 
vies1  report  of  that  case  56,  67,  and  in  Hale's  treatise  de  jure 
maris  et  brachiorum  ejusdum.  Bracton,  too,  quoting  from  Jus- 
tinian, says,  "publica  sunt  omnia  flumina  et  portus  ideoque  jus 
piscandi  omnibus  commune  est  in  portu  flumimbusque,  et  riparum 
etiam  usus  est  publicus  jure  gentium,  sicut  et  ipsius  fluriiinis."  Brac- 
ton lib.  i,  chap.  12. 

In  Lord  Fitzwaltor's  case,  (1  Mod.  105)  it  is  said,  that  in  an 
action  of  trespass  for  fishing  in  a  river,  where  the  tide  flows  and 
reflows,  it  is  a  good  justification  to  say,  that  the  locus  in  quo  est 
brachiam  maris  in  qua  unusquisque  subjectus  domini  regis  habet  et 
habere  debct  liberam  piscariam,  for  that,  prima  facie,  the  fishing  is 
common  to  all.  In  Warren  v.  Matthews,  (6  Mod.  73)  we  are  told 
every  subject  of  common  right  may  fish  with  laivful  nets  in  a  navi- 
gable river,  as  well  as  in  the  sea,  and  the  king's  grant  cannot  bar  him 
thereof.  Same  case  (Salk.  357).  Carter  v.  Marcott  (Bur.  2162). 
In  navigable  rivers,  the  fishery  is  common,  it  is  prima  facie  in  the 
king,  but  is  public  and  for  the  common  use. 

Nothing  can  be  more  clear,  therefore,  than,  that  part  of  tho 
property  of  a  nation  which  has  not  been  divided  among  the  in- 
dividuals, and  which  Vattel  calls  public  property,  is  divided  into 
two  kinds,  one  destined  for  the  use  of  the  nation  in  its  aggregate 
national  capacity,  being  a  source  of  the  public  revenue,  to  defray 
the  public  expense,  called  the  domain  of  the  crown,  and  the  other 
destined  for  the  common  use  and  immediate  enjoyment  of  every 
individual  citizen,  according  to  his  necessity,  being  the  immedi- 
ate gift  of  nature  to  all  men,  and,  therefore,  called  tho  common 
property.  The  title  of  both  these,  for  the  greater  order,  and,  per- 
haps, of  necessity,  is  placed  in  the  hands  of  tho  sovereign  power, 
but  it  is  placed  there  for  different  purposes.  The  citizen  cannot 
enter  upon  the  domain  of  the  crown  and  apply  it,  or  any  part 
of  it,  to  his  immediate  use.  He  cannot  go  into  the  king's  forests 
and  fall  and  carry  away  the  trees,  though  it  is  the  public  prop- 
erty ;  it  is  placed  in  the  hands  of  the  king  for  a  different  purpose, 
it  is  the  domain  of  the  crown,  a  source  of  revenue ;  so  neither 
can-  tho  king  intrude  upon  tho  common  property,  thus  under- 
stood, and  appropriate  it  to  himself,  or  to  tho  fiscal  purposes  of 
the  nation,  tho  enjoyment  of  it  is  a  natural  right  which  cannot 
be  infringed  or  taken  away,  unless  by  arbitrary  power;  and  that, 


NOVEMBER  TERM.  1821.  73 

Arnold  v.  Mundy. 

in  theory  at  least,  could  not  exist  in  a  free  government,  such  as 
England  has  always  claimed  to  be. 

But  if  this  be  so  it  will  be  asked,  how  does  it  happen  that  in 
England,  whose  polity  in  this  respect  we  are  now  examining,  we 
find  not  only  navigable  rivers,  but  also  arms  of  the  sea,  ports,  har- 
bours, and  certain  portions  of  the  main  sea  itself  upon  the  coasts, 
and  all  l,he  fisheries  appertaining  to  them  in  the  hands  of  indi- 
viduals. That  the  fact  is  so  cannot  be  controverted ;  but  how  it 
became  so  is  not  so  easy,  at  this  period  of  time,  satisfactorily  to 
shew.  So  far  as  it  depends  upon  royal  grant,  however,  it  seems 
pretty  clear  that  it  has  always  been  considered  as  an  encroach- 
ment upon  the  common  rights  of  the  people. 

An  exclusive  right  of  fishing  in  a  navigable  river,  is  said  to  be 
a  royal  franchise,  that  is,  a  privilege  or  branch  of  the  royal  pre- 
rogative, granted  by  the  king  to  a  private  person.  This  royal 
prerogative,  we  are  told,  was  first  claimed  by  the  crown,  upon 
the  coming  in  of  William  the  conqueror,  and  was  considered  by 
the  people  to  be  a  usurpation  of  their  ancient  common  rights. 
Accordingly,  in  Magna  Charta,  which  is  said  to  be  nothing 
more  than  a  restoration  of  the  ancient  common  law,  we  find  this 
usurpation  broken  down  and  prohibited  in  future.  That  charter, 
as  passed  in  the  time  of  king  John  enacts,  "that  where  the  banks 
of  rivers  had  first  been  defended  in  his  time,  (that  is,  when  they 
had  first  been  fenced  in,  and  shut  against  the  common  use,  in  his 
time)  they  should  be  from  thenceforth  laid  open."  And,  by  the 
charter  of  Henry  III.  which  is  but  an  amplification  and  confir- 
mation of  the  former,  it  is  enacted,  "  that  no  banks  shall  be  defended 
(that  is,  shut  against  the  common  use)  from  henceforth,  but  such 
as  were  in  defence  in  the  time  of  king  Henry  our  grandfather,  by 
the  same  places  and  the  same  bounds  as  they  were  wont  to  be  in 
his  time."  By  this  charter  it  has  been  understood,  and  the  words 
fairly  import,  that  all  grants  of  rivers,  and  rights  of  fishery  in 
rivers  or  arms  of  the  sea,  made  by  the  kings  of  England  before 
the  time  of  Henry  II.  were  established  and  confirmed,  but  that 
the  right  of  the  crown  to  make  such  royal  grants,  and  by  that 
means  to  appropriate  to  individuals  what  before  was  the  common 
right  of  all,  and  the  means  of  livelihood  for  all,  for  all  future  time, 
was  wholly  taken  away.  And  whatever  diversity  there  may  be 
found  in  the  books,  with  respect  to  the  different  kinds  of  fishery, 
it  can  no  way  affect  the  operation  of  the  charter  in  this  respect, 


74  NEW  JERSEY  SUPEEME  COURT. 

Arnold  v.  Mundy. 

because  that  forbids  all  manner  of  fencing  in,  or  shutting,  fishe- 
ries against  the  common  use.  All  claim,  therefore,  of  an  exclu- 
sive right  of  fishery  in  a  navigable  river,  founded  upon  the  king's 
grant  or  prescription,  which  presupposes  a  grant,  must  reach  as 
far  back  as  Henry  II.  This  we  find  expressly  laid  down  by  Sir 
William  Blackstone,  one  of  the  greatest  men  that  ever  wrote  upon 
the  laws  of  England.  2  Black.  Com.  39.  Lord  Chief  Justice 
Holt,  too,  lays  it  down  as  a  principle,  "that  the  king's  grant 
cannot  bar  a  subject  from  fishing  in  a  navigable  river;"  (6  Mod.  73; 
Salk.  357)  and  pretty  nearly  to  the  same  effect  is  Mod.  105. 
The  case  of  Carter  v.  Marcott  seems  to  admit,  that  such  a  right 
can  be  maintained  by  prescription,  which  runs  back  beyond  the 
memory  of  man.  Bur.  2162. 

Against  this  doctrine  has  been  cited  and  much  relied  upon, 
Lord  Halo's  treatise  de  jure  maris  brachiorumque  ejusdem,  given 
to  us  by  Hargrave  in  his  law  tracts,  and  the  case  of  the  royal 
fishery  upon  the  river  Banne,  in  Ireland,  by  Sir  John  Davies. 
But  making  a  little  allowance  for  both  the  judge  and  the  reporter 
being  disciples  of  Seldon,  and  converts  to  his  doctrine  of  the  mare 
clausum,  everything  they  have  said  may,  in  my  view  of  it,  be  ad- 
mitted in  the  fullest  extent,  and  yet  the  positions  here  laid  down 
be  in  no  way  shaken ;  nay,  indeed,  I  have  rather  considered  them 
as  the  great  foundations  upon  which  they  are  to  rest. 

Lord  Hale  says,  "  the  sea,  and  the  arms  of  the  sea,  and  the 
navigable  rivers  in  which  the  tide  ebbs  and  flows,  are  of  the  do- 
minion of  the  king,  as  of  his  proper  inheritance ;  and  that  this 
dominion,  embraces,  also,  the  shores,  litora,  the  spaces  covered 
with  the  slime  and  mud  deposited  by  the  water  between  the  high 
and  the  low  water  mark,  in  the  ordinary  flow  and  reflow  of  the 
tide ;  that  this  dominion  consists,  first,  in  the  right  of  jurisdiction 
which  he  exercises  by  his  maritime  courts;  and,  secondly,  in  the 
right  of  fishing  in  the  waters;  but  that  though  the  king  is  the 
owner  of  these  waters,  and,  as  consequent  of  his  property,  hath 
the  primary  right  of  fishing  therein,  yet  the  common  people  of 
England  have  regularly  a  liberty  of  fishing  in  the  sea,  and  the 
creeks  and  the  arms  thereof,  as  a  public  common  piscary,  and 
may  not,  without  injury  to  their  right,  bo  restrained  thereof." 
This  is  his  general  doctrine. 

He  then  proceeds  and  says,  that  "though  the  king  hath  this 
right  communijure,  yet  a  subject,  also,  may  have  such  right,  and 


NOVEMBER  TERM,  1821.  75 

Arnold  v.  Mundy. 

that  either  by  king's  grant  or  prescription  ;  that  the  king  may 
grant  fishing  within  a  creek  of  the  sea,  and  that  he  may  also 
grant  a  navigable  river  that  is  an  arm  of  the  sea,  with  the  water 
and  soil  thereof." 

But  when  he  speaks  of  this  power  of  granting,  as  a  common 
law  right  in  the  king,  he  must  be  understood  as  speaking  of  the 
common  law  before  it  was  confined  and  restrained  by  Magna 
Charta,  and  as  it  was  received  and  acted  upon  by  the  kings  of 
England  before  that  time  ;  and  accordingly  all  the  grants  which 
he  has  been  able  to  produce,  after  the  most  diligent  search,  are 
before  the  date  of  that  charter.  He  has  given,  in  support  of  his 
doctrine,  five  grants,  and  five  only,  one  by  Canute  the  Dane; 
two  by  William  the  conqueror ;  one  by  Edward  the  confessor, 
and  one  by  John  himself  before  passing  of  this  statute.  And  that 
the  law  was  so  understood  at  that  time,  or  rather  so  construed 
by  arbitrary  kings;  that  they  did  so  grant,  and  that  those 
grants  were  confirmed  by  Magna  Charta,  and  are  now  the  foun- 
dation of  most  of  the  several  rights  of  fishery  in  England, 
cannot  be  doubted.  And,  besides  this,  Lord  Hale,  in  his  treatise, 
has  nothing  material  on  this  subject  that  I  can  discover.  In 
examining  this  subject,  I  do  not  speak  of  the  jure  regium  as  it 
is  called,  the  right  of  regulation  which  the  king  has  in  all  the 
navigable  waters  of  the  kingdom;  that  is  quite  another  thing, 
and  wholly  foreign  from  the  present  question. 

Then  as  to  the  case  of  the  Banne  water  in  Ireland.  It  was 
this :  the  plaintiff  had  obtained  a  royal  grant  for  the  territory  of 
Rout,  adjoining  the  river  Banne,  in  which  grant  was  contained, 
among  other  things,  piscarias,  piscationes,  aques,  aquarum,  cur- 
sus,  &c.,  in  territoris  predicto,  reserving  to  the  crown  three  parts  of 
the  said  fishery.  And  the  question  was,  whether  this  fishery 
passed  by  the  grant?  and  it  was  held,  that  it  did  not;  not 
indeed,  upon  the  principle,  that  the  king  could  not  grant  in  that 
case,  but  upon  the  construction  of  the  grant. 

In  the  discussion  of  the  case,  however,  it  was  laid  down,  "that 
every  navigable  river,  so  far  as  the  tide  ebbs  and  flows,  is  a  royal 
river,  and  that  the  fishery  of  it  is  a  royal  fishery,  and  belongs  to 
the  king  by  his  prerogative ;  and  the  reason  iSj  that  the  river  par- 
ticipates of  the  nature  of  the  sea,  and  is  said  to  be  a  branch  of 
the  sea  so  far  as  it  flows ;  and  the  sea  is  not  only  under  the 
dominion  of  the  king,  but  it  is  also  his  proper  inheritance,  and, 


76  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mondy. 

therefore,  he  shall  have  the  land  gained  out  of  it,  and  also  the 
grand  fishes  of  the  sea,  such  as  whales,  sturgeons,  &c.,  which  are 
royal  fish,  and  no  subject  can  have  them  without  the  king's 
special  grant ;  and  he  shall  have  the  wild  swans  also,  as  royal 
fowls,  on  the  sea  and  its  branches." 

Now  what  does  this,  taken  in  its  whole  extent,  prove  ?  It 
proves,  that  the  wisdom  of  the  law  has  placed  the  titles  of 
rivers,  «tc.  in  the  king ;  that  if  the  river  shall  leave  its  bed,  or  if 
otherwise,  there  shall  be  alluvions  or  derelictions  by  the  waters, 
the  land  so  made  shall  then,  and  not  before,  belong  to  the  king, 
as  part  of  his  domain  ;  and  that  he  has  an  exclusive  right  in 
these  waters  to  his  royal  fish  and  swans,  but  it  proves  no  more. 
Nay,  indeed,  it  does  prove  more,  for  the  very  position,  that  ho 
has  an  exclusive  right  to  the  royal  fish  and  swans,  proves  that 
he  has  no  such  right  to  any  others.  It  would  be  absurd  to  con- 
tend, that  he  had  an  exclusive  prerogative  right  to  these  fish 
and  swans,  if  he  had  also  the  same  right  to  all  the  fish  in  the 
river,  and  all  the  aquatic  birds  upon  it. 

Again — it  is  said,  in  the  same  book,  "that,  by  the  common  law 
of  England,  a  man  may  have  a  proper  and  several  interest  as  well 
in  a  water  or  river  as  in  a  fishery  ;  and  that,  therefore,  a  water  may 
be  granted."  The  cases  produced  to  support  the  latter  part  of 
this  position  are  grants  from  private  individuals  to  private  indi- 
viduals, but  even  if  they  were  from  the  king,  it  would  not  alter 
the  case,  for  there  is  no  doubt  that  many  such  exist;  but  the 
question  is,  can  such  a  grant  be  made  by  the  king  since  the 
reign  of  Henry  II.?  It  is  enough  to  say,  that  no  instance  of  it 
has  been  produced.  Recent  confirmations  of  ancient  grants 
made  before  that  time,  which  are  recognized  and  established  by 
the  charter  of  Henry  III.  prove  nothing  to  the  purpose. 

Upon  the  whole,  therefore,  I  am  of  opinion,  as  I  was  at  the 
trial,  that  by  the  law  of  nature,  which  is  the  only  true  foundation 
of  all  the  social  rights;  that  by  the  civil  law,  which  formerly  gov- 
erned almost  the  whole  civilized  world,  and  which  is  still  the 
foundation  of  the  polity  of  almost  every  nation  in  Europe ;  that 
by  the  common  law  of  England,  of  which  our  ancestors  boasted, 
and  to  which  it  were  well  if  we  ourselves  paid  a  more  sacred 
regard ;  I  say  I  am  of  opinion,  that  by  all  these,  the  navigable 
rivrrs  in  which  the  tide  ebbs  and  flows,  the  ports,  the  bays,  the 
coasts  of  the  sea,  including  both  the  water  and  the  land  under 


NOVEMBER  TERM,  1821.  77 

Arnold  v.  Mundy. 

the  water,  for  the  purpose  of  passing  and  repassing,  navigation, 
fishing,  fowling,  sustenance,  and  all  the  other  uses  of  the  water 
and  its  products  (a  few  things  excepted)  are  common  to  all  the 
citizens,  and  that  each  has  a  right  to  use  them  according  to  his 
necessities,  subject  only  to  the  laws  which  regulate  that  use;  that 
the  property,  indeed,  strictly  speaking,  is  vested  in  the  sovereign, 
but  it  is  vested  in  him  not  for  his  own  use,  but  for  the  use  of  the 
citizen,  that  is,  for  his  direct  and  immediate  enjoyment. 

I  am  of  opinion,  that  this  great  principle  of  the  common  law 
was,  in  ancient  times,  in  England  gradually  encroached  upon 
and  broken  down  ;  that  the  powerful  barons,  in  some  instances, 
appropriated  to  themselves  these  common  rights ;  that  the  kings 
themselves,  also,  in  some  instances  during  the  same  period, 
granted  them  out  to  their  courtiers  and  favourites;  and  that 
these  seizures  and  these  royal  favours  are  the  ground  of  all  the 
several  fisheries  in  England,  now  claimed  either  by  prescription 
or  by  grant;  that  the  great  charter,  as  it  is  commonly  called, 
which  was  nothing  but  a  restoration  of  common  right,  though  it 
did  not  annul,  but  confirmed,  what  had  been  thus  tortiously  done, 
yet  restored  again  the  principles  of  the  common  law,  in  this  as  well 
as  in  many  other  respects;  and  since  that  time  no  king  of  England 
has  had  the  power  of  granting  away  these  common  rights,  and 
thereby  despoiling  the  subject  of  the  enjoyment  of  them. 

I  am  of  opinion,  that  when  Charles  II.  took  possession  of  this 
country,  by  his  right  of  discovery,  he  took  possession  of  it  in  his 
sovereign  capacity ;  that  he  had  the  same  right  in  it,  and  the  same 
power  over  it,  as  he  had  in  and  over  his  other  dominions,  and  no 
more ;  that  this  right  consisted  chiefly  in  the  power  of  granting 
the  soil  to  private  citizens  for  the  purposes  of  settlement  and  col- 
onization, of  establishing  a  government,  of  appointing  a  governor, 
of  conveying  to  him  all  those  things  appurtenant  to  the  sov- 
ereignty, commonly  called  royalties,  for  the  benefit  of  colonists; 
but  that  he  could  not,  and  never  did,  so  grant  what  is  called  the 
common  property  as  to  convert  it  into  private  property ;  that  these 
royalties,  therefore,  which  constitute  that  common  property  of 
which  the  rivers,  bays,  ports,  and  coasts  of  the  sea  were  part,  by 
the  grant  of  king  Charles,  passed  to  the  duke  of  York,  as  the  gov- 
ernor of  the  province  exercising  the  royal  authority  for  the  pub- 
lic benefit,  and  not  as  the  proprietor  of  ihe  soil,  and  for  his  own 
private  use;  and  that  if  they  passed  from  the  duke  of  York  to  his 
grantees,  which  is  a  very  doubtful  question,  then,  upon  the  sur- 


78  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

render  of  the  government,  as  appurtenant  thereto,  and  insepar- 
able therefrom,  they  reverted  to  the  crown  of  England. 

And  I  am  further  of  opinion,  that,  upon  the  Revolution,  all 
these  royal  rights  became  vested  in  the  people  of  New  Jersey, 
as  the  sovereign  of  the  country,  and  are  now  in  their  hands ; 
and  that  they,  having,  themselves,  both  the  legal  title  and  the 
usufruct,  may  make  such  disposition  of  them,  and  such  regula- 
tion concerning  them,  as  they  may  think  fit;  that  this  power  of 
disposition  and  regulation  must  be  exercised  by  them  in  their 
sovereign  capacity;  that  the  legislature  is  their  rightful  repre- 
sentative in  this  respect,  and,  therefore,  that  the  legislature,  in 
the  exercise  of  this  power,  may  lawfully  erect  ports,  harbours, 
basins,  docks,  and  wharves  on  the  coasts  of  the  sea  and  in  the 
arms  thereof,  and  in  the  navigable  rivers ;  that  they  may  bank 
off  those  waters  and  reclaim  the  land  upon  the'shores ;  that  they 
may  build  dams,  locks,  and  bridges  for  the  improvement  of  the 
navigation  and  the  ease  of  passage;  that  they  may  clear  and 
improve  fishing  places,  to  increase  the  product  of  the  fishery ; 
that  they  may  create,  enlarge,  and  improve  oyster  beds,  by 
planting  oysters  therein  in  order  to  procure  a  more  ample  sup- 
ply; that  they  may  do  these  things,  themselves,  at  the  public 
expense,  or  they  may  authorize  others  to  do  it  by  their  own 
labour,  and  at  their  own  expense,  giving  them  reasonable  tolls, 
rents,  profits,  or  exclusive  and  temporary  enjoyments ;  but  still 
this  power,  which  may  be  thus  exercised  by  the  sovereignty  of 
the  state,  is  nothing  more  than  what  is  called  the  jus  regium,  the 
right  of  regulating,  improving,  and  securing  for  the  common 
benefit  of  every  individual  citizen.  The  sovereign  power  itself, 
therefore,  cannot,  consistently  with  the  principles  of  the  law  of 
nature  and  the  constitution  of  a  well  ordered  society,  make  a 
direct  and  absolute  grant  of  the  waters  of  the  state,  divesting 
all  the  citizens  of  their  common  right.  It  would  be  a  grievance 
•which  never  could  be  long  borne  by  a  free  people. 

From  this  statement,  it  is  seen  that,  in  my  opinion,  the  pro- 
prietors, as  such,  never  had,  since  the  surrender  of  the  govern- 
ment, any  such  right  to,  interest  in,  or  power  over,  these  waters, 
or  the  land  covered  by  them,  as  that  they  could  convey  the  samo 
and  convert  them  into  private  property;  and  that,  therefore, 
the  grant  in  question  is  void,  and  ought  not  to  prevail  for  the 
benefit  of  the  plaintiff,  and,  of  course,  that  the  rule  to  shew 
cause  must  bo  discharged. 


NOVEMBER  TERM,  1821.  79 

Arnold  v.  Mundy. 

ROSSELL  J.  It  is  a  fact,  as  singular  as  it  was  unexpected  in 
the  jurisprudence  of  our  state,  that  the  taking  a  few  bushels  of 
oysters,  alleged  to  be  the  property  of  the  plaintiff  in  this  suit, 
should  involve  in  it  questions  momentous  in  their  nature,  as  well 
as  in  their  magnitude;  calling  forth  the  talents,  learning,  and 
industry  of  our  bar;  affecting  the  rights  of  all  our  citizens,  and 
embracing,  in  their  investigation,  the  laws  of  nations  and  of 
England,  the  relative  rights  of  sovereign  and  subjects,  as  well 
as  the  municipal  regulations  of  our  own  country. 

The  plaintiff's  counsel  contend,  that  the  nonsuit  granted  on 
the  trial  of  this  cause,  by  the  Chief  Justice,  should  be  set  aside, 
on  two  grounds : — 1.  That  the  locus  in  quo  whereon  these  oysters 
were  laid,  was  his  own  proper  freehold,  by  virtue  of  a  proprie- 
tary right,  duly  laid  thereon,  returned  and  approved  of  by  the 
council  of  proprietors  of  East  Jersey,  and  recorded  by  their 
authorized  officer,  in  consequence  of  which  he  claims  a  several 
fishery.  2.  That  he  had  purchased  and  planted  those  oysters 
on  the  spot  from  whence  they  were  taken  by  the  defendant;  and 
as  a  public  notice,  that  he,  by  placing  them  on  the  soil  of  the  river 
Rariton,  had  not  abandoned  his  property  in  them,  he  had  sur- 
rounded them  with  small  stakes.  The  defendant  claims  a  right 
to  those  oysters,  having  taken  them  from  a  bed  called  an  oyster- 
bed,  situate  on  the  river  Rariton,  below  the  common  low  water 
mark,  and  on  which  it  had  been  usual  for  the  people  of  East 
Jersey  to  fish  for  oysters,  from  the  first  settlement  of  the  country. 

In  support  of  the  first  of  these  positions,  the  counsel  for  the 
plaintiff  contend,  that  Charles  II.  in  the  year  16G4,  granted  unto 
his  brother,  the  duke  of  York,  the  land,  soil,  seas,  bays,  rivers, 
with  divers  franchises,  royalties,  and  government  of  New  Jersey ; 
that  the  duke  of  York  granted  the  same,  in  like  words  and 
powers,  to  Lord  Berkley  and  Sir  George  Carteret;  that  these,  by 
grant,  conveyed  to  the  Earl  of  Perth,  William  Penn,  and  others, 
that  part  of  New  Jersey  called  East  Jersey,  and  to  Edward 
Billinge,  that  part  called  West  Jersey,  together  with  all  the  roy- 
alties, franchises,  and  government,  as  fully  as  the}'  were  granted 
by  the  king  to  the  duke  of  York;  and  that  the  present  proprie- 
tors of  East  Jersey,  deriving  their  respective  titles  to  their  several 
shares  or  proportions  to  all  the  unlocated  soil  and  waters  of  East 
Jersey,  by  virtue  of  several  mesne  conveyances  from  the  original 
proprietors,  had  a  legal  power  to  dispose  of  rights  to  the  plain- 


80  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

tiff  to  locate  them  on  this  oyster-bed,  whereon  the  trespass  is 
alleged  to  have  been  committed.  And  it  is  insisted,  that  as 
Charles  II.  did  grant,  so  he  had  the  power  to  grant,  not  only 
the  whole  soil  of  a  newly  discovered,  or  conquered,  country,  but 
certain  parts  of  his  royal  prerogative,  as  named  in  the  grants 
or  letters  patent  to  and  from  the  duke  of  York. 

In  support  of  these  positions,  they  cite  numerous  authorities. 
Vattel  120-5-7,  sec.  266,  and  101,  sec.  210.  2  Slack.  Com.  15. 1  76. 
264,  286.  Davies  152.  6  Com.  Dig.  Navigation  D  50,  60,  title 
Prerogative.  4  Bur.  2163-4-5.  3  Cruise,  sec.  14,  title  Deed,  565- 
8.  17  John.  209-10-13.  3  Term.  Reports  253.  2  Bin.  475.  4 
Mass.  Eep.  140.  Har.  &  McHen.  Eep.  564.  Har.  L.  T.  5,  7,  10, 
11,  14,  17,  19.  1  Rutherf.  91.  .  2  76.  82.  3  Chit.  Grim.  Law  359. 
2  Ld.  Ray.  1274.  2  Salk.  666.  Smith's  Hist.  N.  J.  Learning  & 
Spicer,  Grants  and  Concessions. 

From  these  authorities  it  abundantly  appears,  that  by  the  law 
of  nations  and  of  England,  a  conqueror  has  a  right  to  impose 
such  laws  on  the  conquered,  as  he  may  think  proper;  that  in 
England,  all  property,  real  and  personal,  capable  of  ownership 
vests  in  some  one  or  more  individuals  or  bodies  corporate;  that 
the  titles  to  lands  in  England  are  said  to  be  held,  in  general, 
mediately  from  the  king;  that  certain  rights  and  powers  are 
vested  in  him,  as  the  head  of  the  government,  under  the  name  or 
title  of  prerogative,  amongst  which  may  be  numbered,  on  the 
present  occasion,  the  sovereignty  of  the  sea,  to  a  certain  extent, 
and  of  all  public  rivers,  royal  fish,  as  whales  and  sturgeons, 
wrecks,  treasure-trove,  &c.;  that  the  kings  of  England  have,  from 
time  to  time,  frequently  alienated  part  of  the  domains  belonging  to 
the  crown,  and  bestowed  many  franchises  on  their  favourites,  and 
rewarded  individuals,  for  their  faithful  services,  with  parts  of 
their  lands,  or  granted  them  many  exclusive  privileges,  as  a  right 
to  fish  in  arms  of  the  sea,  or  public  rivers  wherein  the  sea  ebbs 
and  flows;  and  lastly,  that  King  Charles  II.  did,  in  the  year  1664, 
grant  to  the  duke  of  York  all  the  lands,  islands,  soils,  rivers,  har- 
bours, mines,  minerals,  quarries,  woods,  marshes,  waters,  lakes,' 
fishings,  bawkings,  huntings,  fowlings,  and  all  other  royalties  in, 
belonging,  or  appertaining  to  the  state  of  New  Jersey,  as  well  as 
the  government  of  the  same  (saving  and  reserving  to  the  crown 
the  receiving,  hearing,  and  determining  appeals  in  and  touching 
any  judgment  or  sentence  to  be  there  made  or  given) ;  to  appoint 


NOVEMBER  TERM,  1821.  81 

Arnold  v.  Mundy. 

governors,  and  to  make  all  necessary  laws,  &c.,  so  always  that 
they  be  not  contrary  to  the  laws  and  statutes  of  England,  but  as 
near  as  may  be  agreeable  thereto. 

After  a  careful  examination  of  the  authorities  cited  to  establish 
the  plaintiff's  claim  to  these  oysters,  and  his  right  to  a  several 
fisheiy  on  the  bed  whereon  they  wore  laid,  I  shall  proceed  to 
examine  the  correctness  of  the  inferences  and  conclusions  his 
counsel  have  drawn  from  those  authorities.  And  it  may  not  be 
amiss  to  take  a  very  brief  view  here  of  the  manner  in  which  thia 
country  was  first  settled  by  English  subjects. 

In  the  preface  of  Grants  and  Concessions,  by  Learning  <fc  Spicer, 
they  say:  "The  great  success  of  the  house  of  Austria  on  this 
side  the  Atlantic,  and  the  prodigious. wealth  they  had  drawn  from 
their  colonies,  could  not  fail  pointing  out  to  so  enterprising  a 
people  as  the  Britons,  this  as  a  seat  of  future  wealth  and  grandeur. 
But  the  authority  of  a  limited  government,  aided  by  the  example 
of  a  few  individuals,  would  have  scarcely  been  sufficient  to  pre- 
vail on  the  common  people  to  shake  off  that  attachment  inherent 
in  all  to  their  native  soil,  and  dare  an  untrod  ocean  in  search  of 
a  country  they  had  only  heard  of.  It  was,  therefore,  necessary 
to  cultivate  such  a  spirit  as  should  ripen  them  for  the  undertak- 
ing; in  order  to  which,  king  Charles  II.  in  1668,  granted  to  the 
duke  of  York  the  soil  and  government  of  New  Jersey,  who  after- 
wards transferred  the  same  to  other  proprietors,  who  wisely 
secured  to  the  adventurers  their  religion,  liberties,  and  property 
by  which  New  Jersey  was,  with  great  rapidity,  transformed  from 
a  savage  wilderness  to  a  Christian  and  civilized  country." 

These  Grants  and  Concessions,  as  well  as  Smith's  Hi$t.  of  N.  J, 
contain  many  provisions,  agreements  and  descriptions  of  the 
country,  and  invitations  to  settlers  from  England.  In  the  17th 
section  of  what  is  called  their  great  charter  (Learning  &  Spicer 
395)  they,  the  proprietors,  declare  that  none  shall  be  deprived  or 
condemned  of  life,  liberty,  or  estate,  or  any  way  hurt  in  his  or 
their  privileges,  freedoms,  or  franchises  without  a  trial  by  jury. 
So,  in  page  12,  they  secure  to  the  settlers  all  such  freedoms  and 
privileges  within  the  said  province  as  to  his  majesty's  subjects  do 
of  right  belong.  In  page  28,  the  proprietors  instruct  their  gov- 
ernor to  especially  provide  for  the  interest,  liberty,  and  defence  of 
all  who  shall  plant  or  inhabit  the  said  province.  In  page  54,  the 
proprietors  set  forth  their  claim  to  all  strays  of  beasts  at  land,  and 

VOL.  I.  F 


82  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mnndy. 

all  wrecks  at  sea.  In  page  141,  in  the  year  1682,  the  duke  of 
York  confirms  to  the  twenty-four  proprietors,  their  heirs,  and 
assigns,  as  well  for  the  planting,  peopling,  and  improving  the 
lands,  territories,  &c.  all  islands,  bays,  rivers,  &c.  repeating  all 
things  named  in  the  original  grant,  with  all  his  interest,  claim,  and 
demand  in  law  or  equity ;  and  then  goes  on  to  say,  (page  148) 
as  also  the  free  use  of  all  bays,  rivers,  and  waters  leading  into,  or 
lying  between,  the  said  premises  (of  East  Jersey)  for  navigation, 
free  trade,  fishing,  or  otherways. 

This  confirmation  became  necessary  to  establish  the  rights  of 
the  proprietors,  for  two  reasons :  1.  The  Dutch  had  claimed  a 
right  to  this  country,  and  had,  for  a  number  of  years,  possession 
of  New  York  and  parts  adjacent  in  this  state,  and,  also,  had  made 
settlements  on  both  sides  of  the  Delaware.  They  were  dispos- 
sessed thereof  in  1668,  by  the  English,  under  Colonel  Nichols. 
At  the  expiration  of  the  war  that  followed  soon  after  between 
England  and  the  states  of  Holland,  they  were  silent  as  to  their 
pretensions  to  this  country.  2.  Although  it  might  be  true,  that 
Charles  II.  might  delegate  the  powers  of  government  to  an  indi- 
vidual, and  endow  him  wi  th  many  royal  franchises,  it  was  strongly 
contended,  that  the  duke  of  York  had  no  such  power ;  and 
more  especially,  it  could  not  pass  from  proprietor  to  proprietor, 
in  the  manner  this  state  had  been  conveyed.  These  objections 
were  laid  before  the  king;  the  proprietors  were  made  acquainted 
with  those  difficulties,  which  occasioned  them  to  say,  (Learning 
&  Spicer,  sec.  613)  "Her  majesty  hath  been  advised  that  we 
have  no  right,  nor  can  legally  execute  any  of  the  said  powers, 
but  that  it  belongs  to  her  majesty,  in  right  of  her  crown,  to  con- 
stitute governors,  &c.;  and,  being  desirous  to  submit  ourselves  to 
her  majesty,  are  willing  to  surrender  all  our  pretences,"  &c. 

For  a  more  full  description  of  the  powers  of  a  conqueror  over 
the  conquered,  Vattel,  Dyer,  and  Vaughan  may  be  consulted.  In 
Dyer  166,  224,  and  in  Vaughan  281,  it  is  laid  down,  "If  a  king 
of  England  makes  a  new  conquest  of  any  country,  the  persons 
there  born  are  his  subjects,  for  by  saving  the  lives  of  the  people 
he  gains  a  property  in  them,  and  may  impose  on  them  what  law 
he  pleases.  But,  until  such  laws  are  given,  the  laws  and  customs 
of  the  conquered  country  shall  hold  place,  unless  contrary  to  our 
religion,  or  malum  in  se,  or  are  silent.  In  all  such  cases,  the 
law  of  the  conquering  country  shall  prevail."  In  2  Salk,  412, 


NOVEMBER  TERM,  1821.  83 

Arnold  v.  Mundy. 

where  the  laws  of  the  conquered  are  rejected  or  silent,  they  shall 
be  governed  according  to  the  rules  of  natural  justice.  In  Ib.  166, 
411-12,  and  in  2  Willes  7,  if  there  be  an  uninhabited  country 
found  out  by  British  subjects,  as  the  law  is  their  birthright  wher- 
ever they  go,  they  carry  their  laws  with  them,  they  are,  there- 
fore, governed  by  the  laws  of  England. 

It  is  true,  that  in  1  Black.  Com.  108,  it  is  laid  down,  "  That 
the  common  law  of  England,  as  such,  does  not  extend  to  the 
American  plantations."  In  this  he  is  contradicted  by  the  author- 
ities above  stated,  and  a  number  of  others  of  great  celebrity ; 
by  the  universal  understanding  of  all  the  English  emigrating  to 
this  country ;  by  the  legislature  of  our  own  and  several  of  the 
neighboring  states ;  and,  indeed,  it  appears  directly  opposed  to 
his  declarations  in  another  p  art  of  the  same  page,  where  he 
says,  "If  an  uninhabited  country  is  planted  by  British  subjects, 
all  the  English  laws  applicable  to  their  situation  are  immediately 
there  in  force."  What  reason  can  be  given  why  a  people,  with 
the  approbation  of  their  king,  sent  to  colonize  a  ceded  or  conquered 
country  for  the  benefit  and  aggrandisement  of  the  mother  coun- 
try, should  be  deprived  of  their  birthright  f  why  more  than  if 
they  went  without  the  king's  consent  to  colonize  an  uninhabited 
country  from  discontent  at  home,  from  whim,  caprice,  or  the 
advancement  of  their  individual  interest  ?  In  conquered,  or  ceded, 
countries,  (which  our  American  plantations  principally  are)  "  that 
have  laws  of  their  own,  the  king  may,  indeed,  alter  or  change 
those  laws,  until  which  the  ancient  laws  of  the  country  prevail, 
unless- such  as  are  against  the  law  of  God,  as  in  an  infidel  coun- 
try. They,  the  American  plantations,  were  obtained  either  by 
conquest,  as  driving  out  the  natives,  or  by  treaties."  1  Black. 
Com.  108.  This  will  not  apply  to  New  Jersey ;  it  was  never 
ceded  by  na*me  or  description,  to  England,  nor  did  we  drive  out 
the  natives,  but  by  a  peaceable  purchase  became  possessed  of 
their  rights  to  the  soil,  &c.;  and  that  the  proprietors,  governors, 
and  settlers  were  all  united  in  the  opinion  that  the  common 
law  and  the  laws  of  England  were  their  birthright,  is  manifest 
from  what  has  been  before  stated,  as  well  as  from  other  parts 
of  Learning  &  Spicer,  Smith's  Hist.  N.  J.  our  own  constitu- 
tion, and  decisions  of  our  highest  courts  of  judicature.  In  the 
year  1680,  the  proprietors,  protesting  against  a  duty  exacted  of 
them  by  the  duke  of  York,  say,  (Smith's  Hist.  N.J.  118)  "If 


84  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

we  would  not  assure  people  of  an  easy,  free  and  safe  govern- 
ment, an  uninterrupted  liberty  of  conscience,  and  an  inviolable 
possession  of  their  civil  rights  and  freedoms,  a  mere  wilderness 
would  bo  no  encouragement."  Ib.  118 — "To  say,  that  this  is 
a  conquered  country,  and  the  king,  as  conqueror,  has  the  power 
to  make  laws,  raise  money,  &c.  But  suppose  the  king  wore  an 
absolute  conqueror,  doth  his  power  extend  over  his  own  English 
people  as  over  the  conquered?  arc  not  they  some  of  the  letters 
that  make  up  the  word  conqueror  ?  did  Alexander  conquer  alone, 
or  Caesar  beat  by  himself?  shall  their  armies  of  countrymen  and 
natives  lie  at  the  same  mercy  as  the  vanquished  ?  The  Norman 
duke  used  not  the  companions  of  his  victory  so  ill ;  natural  right 
and  human  prudence  oppose  such  doctrine  all  tho  world  over." 
Ib,  120,  our  case  is  better  yet,  for  the  king's  grant  to  the  duke 
is  plainly  restrictive  to  the  laws  and  government  of  England. 
There  are  home-born  rights  declared  to  be  law  by  statutes,  as  in 
the  great  charter  29  and  34  Edward  III.  chap.  2.  We  humbly 
say  we  have  not  lost  "  any  part  of  our  liberty  by  leaving  our 
country,  for  we  leave  not  our  king  or  government  by  quitting 
our  soil.  Under  favour  we  buy  nothing  of  tho  duke  if  not  the 
right  of  free  colonization  as  Englishmen  with  no  diminution,  but 
expectation  of  some  increase,  of  those  freedoms  and  privileges 
enjoyed  in  our  country.  The  soil  is  none  of  his  ;  it  is  the  natives' 
by  ihejus  gentium,  the  law  of  nations.  It  would  be  an  511  argu- 
ment to  convert  to  Christianity,  to  expel,  instead  of  purchasing, 
them  out  of  those  countries."  Ib.  190 — Governor  Coxe,  the 
greatest  proprietor  of  West  Jersey,  appointed  in  1687,  writes 
thus,  "I  do,  in  my  heart,  highly  approve  of  the  ratified  funda- 
mentals, &c.  that  no  person  shall  be  deprived  of  life,  limb,  estate, 
privilege,  freedom,  franchises,  without  a  due  trial,  &c.,  as  well  as 
all  other  parts  of  the  fundamentals,  if  it  appears  there  is  nothing 
in  them  contrary  to  the  laws  of  England  which  extend  to  our 
colony,  by  the  breach  whereof  we  inevitably  expose  ourselves  to 
tho  forfeiture  of  our  charter."  In  1702,  Lord  Cornbury  was  ap- 
pointed governor  by  queen  Anne.  In  his  address,  that  year,  to 
the  council  and  assembly,  he  says,  "  Her  majesty  has  command- 
ed me  to  assure  you  of  her  protection  upon  all  occasions.  Under 
her  auspicious  reign,  you  will  enjoy  all  the  liberty  and  happiness 
that  good  subjects  can  wish  for  under  the  best  laws  in  the  uni- 
verse, I  mean  the  laws  of  England."  The  legislature,  in  answer, 


NOVEMBER  TEEM,  1821.  85 

Arnold  v.  Mundy. 

say,  "  they  are  satisfied  that  the  queen  will  protect  them  in  the 
full  enjoyment  of  their  rights,  liberties,  and  properties,  and  they 
are  happy  under  the  government  of  the  greatest  queen  and  the 
best  of  laws,"  &c.  Ib.  414 — In  1720,  Governor  Burnet  was 
appointed,  and  addressed  the  legislature,  he  congratulates  them 
on  the  accession  of  George  I.  "  to  which,"  he  adds,  "  you  owe 
the  preservation  of  your  laws  and  liberties." 

Ib.  560 — In  1699,  the  proprietors  of  East  Jersey,  in  a  memo- 
rial to  the  lords  commissioners  of  trade  and  plantations,  offer  to 
surrender  the  government  thereof  to  the  king,  towards  which, 
they  say,  they  enumerate  the  following  particulars: — "First,  that 
his  majesty  would  confirm  to  them  the  soil  and  lands."  And  in 
the  13th  article — "all  lands,  goods,  and  chattels  of  felons,  &c. 
treasure-trove,  mines  and  minerals,  royal  mines,  wrecks,  royal 
fish  that  shall  be  forfeited,  found,  or  taken  within  East  Jersey, 
or  within  the  seas  adjacent,  to  remain  to  the  proprietors,"  &c. 

Ib.  572 — This  not  succeeding,  in  1701,  the  proprietors  of  East 
and  West  Jersey  presented  another  memorial,  the  14th  section 
of  which  says,  "  That  all  such  further  privileges,  franchises,  and 
liberties,  as  upon  consideration  shall  be  found  necessary  for  the 
good  government  and  prosperity  of  the  said  province,  and 
increasing  the  trade,  may  be  granted  to  the  proprietors." 
Learn.  &  Spi.  681 — In  1680,  "As  we  are  the  representatives  of 
the  freeholders  of  this  province,  we  dare  not  grant  his  majesty's 
patent,  though  under  the  great  seal  of  England,  to  be  our  rule; 
for  the  great  charter  of  England,  alias  Magna  Charta,  are  the 
only  rules  of  privilege  and  safety  of  every  free-born  Englishman." 

Thus  our  forefathers,  bringing  with  them  so  much  of  the  com- 
mon law  of  Great  Britain  as  was  applicable  to  their  change  of 
situation,  settled  New  Jersey,  claiming,  as  their  birthright,  all 
the  liberties  enjoyed  in  their  native  land,  with  the  addition  of  a* 
number  of  privileges  granted  them  by  the  proprietors,  as  an 
encouragement  to  them,  and  as  a  benefit  to  both. 

As  to  the  right  of  Charles  II.  to  grant  the  sea,  bays,  rivers, 
fisheries,  and  other  royal  franchises  in  such  manner  as  to  now 
vest,  by  a  string  of  conveyances  from  subject  to  subject,  a  sev- 
eral fishery  in  the  plaintiff,  as  contended  for  by  his  counsel.  Dav. 
150,  152;  Bur.  2164;  3  Cruise  170,  Franchise,  sec.  68;  Salk.  637, 
and  Esp.  Dig.  pt.  i,  270,  are  relied  on  as  supporting  that  posi- 
tion. In  the  case  of  the  royal  fishery  of  the  river  Banne,  in  Ire- 


86  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

land,  it  was  resolved  by  the  court  there — "  1.  That  a  man  may 
have  a  proper  and  several  fishery  as  well  in  a  water  or  river  as 
in  a  fishery,  and,  therefore,  a  water  may  be  granted.  2.  There 
are  two  kinds  of  rivers,  navigable  and  not  navigable.  Every 
navigable  river,  so  far  as  the  sea  ebbs  and  flows,  is  a  royal  river, 
and  the  fishery  of  it  is  a  royal  fishery,  and  belongs  to  the  king 
by  his  prerogative.  But  in  every  other  river  not  navigable,  and 
in  the  fishery  of  such  rivers,  the  ter-tenants  on  each  side  have 
an  interest  of  common  right.  The  reason  for  which  the  king 
hath  an  interest  in  such  navigable  river,  so  high  as  the  sea  flows 
and  ebbs  in  it,  is  because  such  river  participates  of  the  nature 
of  the  sea,  and  is  said  to  be  a  branch  of  the  sea.  The  sea  is  not 
only  under  the  dominion  of  the  king,  but  is  his  proper  inherit- 
ance, and,  therefore,  the  king  shall  have  the  land  which  is  gained 
of  the  sea,  also  the  grand  fishes  of  the  sea,  as  whales  and  stur- 
geons, which  are  royal  fishes,  and  no  subject  can  have  them 
without  the  king's  special  grant,  for  the  king  ought  of  right  to 
save  and  defend  his  realm,  as  well  against  the  sea  as  against  his 
enemies.  The  commission  of  sewers  was  awarded  by  the  king, 
by  virtue  of  his  prerogative,  and  extends  to  not  only  walls  and 
banks  of  the  sea  but  also  to  navigable  rivers  and  fresh  waters. 
In  statute  25  Henry  VIII.  the  king  by  reason  of  his  preroga- 
tive, ought  to  provide  that  navigable  streams  be  made  passable. 
3.  The  city  of  London,  by  charter  from  the  king,  had  the  river 
Thames  granted  to  them.  But  because  it  was  conceived  that 
the  soil  and  ground  of  the  river  did  not  pass  by  the  grant,  they 
purchased  another  charter,  by  which  the  king  granted  them 
solum  et  fundum  of  the  said  river,  by  force  of  which  the  city 
receives  rents  of  those  who  fix  posts  or  wharves  on  the  soil  of 
said  river;  and  although  the  king  permits  people  to  have  pas- 
*sage  over  such  rivers,  he  hath  the  sole  interest  in  the  soil,  and 
also  in  the  fishery,  although  the  profit  of  it  is  not  commonly 
taken  by  him  if  it  is  not  of  extraordinary  and  certain  value,  as 
the  fishery  of  the  Banne  hath  at  all  times  been.  Wherefore  it 
was  resolved,  that  the  river  Banne,  so  far  as  the  sea  flows  and 
ebbs  in  it,  is  a  royal  river,  and  the  fishery  of  salmon  there  is  a 
royal  fishery,  which  belongs  to  the  king  as  a  several  fishery,  and 
not  to  those  who  have  the  soil  on  each  side  of  the  water.  On  the 
other  hand,  it  was  agreed,  that  every  inland  river  not  navigable 
appertains  to  the  owners  of  the  soil  where  it  has  its  course." 


NOVEMBER  TERM,  1821.  87 

Arnold  v.  Mundy. 

3.  That  no  part  of  this  royal  fishery  of  the  Banne  could  pass  by 
the  grant  of  lands  adjoining  by  the  general  grant  of  all  fisheries. 
This  is  a  fishery  in  gross,  and  a  parcel  of  the  inheritance  of  the 
crown  by  itself.  The  case  itself  also  states,  that  in  this  river,  Banne, 
there  was  a  rich  fishery  of  salmon,  which  was  parcel  of  the  ancient 
inheritance  of  the  qrown,  as  appears  by  the  pipe-rolls  and  surveys, 
where  it  was  found  in  charge  of  the  officers  of  the  pipe  office  as  a 
several  fishery,  and  was  granted  to  the  city  of  London  in  fee  farm. 
This  was  intruded  on  and  shared  amongst  the  Irish  lords,  who 
took  possession  by  strong  hand,  and  held  it  a  long  time.  The  king 
granted,  by  letters  patent  to  Sir  Randal  M'Donald,  a  parcel  of 
the  county  of  Antrim  adjoining  the  river  Banne,  where  the  fishery 
is,  together  with  all  waters,  fish,  and  fisheries  within  the  said 
territory.  And  the  question  before  the  court  was,  whether  the 
grant  included  any  part  of  this  fishery  ?  which  was  determined 
in  the  negative,  on  the  ground,  that  it  was  a  several  fishery 
belonging  to  the  crown,  as  a  parcel  of  its  ancient  inheritance, 
which  was  proved  by  several  pipe-rolls  and  surveys,  and  was  in 
charge  of  the  officers  of  the  pipe  office.  It  was  also  let  \nfeefarm, 
the  mode  by  which  the  lands  attached  to  the  crown  were  gener- 
ally held  by  the  tenants  of  the  crown.  Nor  do  I  see  how  else  it 
could  be  called  a  royal  fishery,  and  salmon  royal  fish,  which  is 
in  the  same  book,  as  well  as  in  many  others,  confined  to  whales, 
and  sturgeons.  The  same  book,  111-12,  in  another  case  of 
tanistry,  says,  "the  king,  as  conqueror  of  Ireland  has  posses- 
sion of  all  lands  which  he  willeth  to  seize  and  retain  in  his  own 
hands,  for  his  profit  or  pleasure.  And  where  the  natives  of  a 
conquered  country  are  received  under  the  protection  of  the 
conqueror,  and  are  permitted  to  retain  their  possessions,  their 
heirs  shall  be  adjudged  in  a  good  title,  without  grant  or  con- 
firmation, according  to  the  rules  of  law  there  established." 
Salkeld,  Espinasse,  and  other  authorities,  cite  the  case  from 
Davies  of  the  river  Banne,  as  supporting  the  doctrine  they  hold. 

2  Cruise  278 — "A  franchise  is  a  branch  of  the  royal  preroga- 
tive, subsisting  in  the  hands  of  a  subject  by  grant  from  the  king, 
annexed  to  manors  and  the  right  to  hold  courts  leet,  to  have 
waifs,  wrecks,  royal  fish,  which  consist  of  whales  and  sturgeons." 
So  in  Ib.  297 — "A  free  fishery,  or  exclusive  right  of  fishing  in  a 
public  river  is  a  royal  franchise,  which  is  now  frequently  vested 
in  private  persons,  either  by  grant  from  the  crown  or  by  pre- 


88  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

scription."  But  he  adds — "  This  right  was  probably  first  claimed 
by  the  crown  upon  the  establishment  of  the  Normans,  and  was 
deemed  by  the  people  a  usurpation." 

In  4  Bur.  2162,  it  was  declared  as  the  opinion  of  the  whole 
court,  that  one  might  prescribe  for  a  several  fishery,  parcel  of  a 
manor,  where  the  sea  flows  and  reflows,  but  he  must  prove  a 
right  by  prescription,  the  presumption  is  against  him.  In  navi- 
gable rivers,  where  the  sea  flows  and  reflows,  the  right  of  fishing 
is  common.  And  Lord  "Mansfield  adds — "The  rule  of  law  is 
uniform,  in  rivers  not  navigable,  the  proprietors  of  the  land  have 
the  right  of  fishery  on  their  respective  sides;  but  in  navigable 
rivers  they  have  it  not,  the  fishery  is  common." 

In  1  and  2  Modern,  Lord  Hale  says — "In  case  of  private 
rivers,  the  lords  having  the  soil  is  good  evidence  to  prove  ho 
hath  the  right  of  fishing,  and  it  puts  the  proof  on  them  who  claim 
liberam  piscariam.  But  in  case  of  a  river  that  flows  and  reflows 
prima  facie  it  is  common  to  all.  If  any  claim  it  to  himself,  the 
proof  lioth  on  bis  side;  and  it  is  a  good  justification  to  say,  the 
locus  in  quo  is  a  branch  of  the  sea,  and  that  the  subjects  of  the 
king  are  entitled  to  a  free  fishery.  The  soil  of  the  Severn,  with 
particular  restraints,  as  gurgites,  is  in  the  lords,  and  a  special  kind 
of  fishing,  but  the  common  kind  of  fishing  is  common  to  all.  The 
soil  of  the  Thames  is  in  the  king;  the  Lord  Mayor  is  conserva- 
tor of  the  river,  and  it  is  common  to  all  fishermen ;  therefore 
there  is  no  such  contradiction  betwixt  the  soil  being  in  one,  and 
yet  the  river  being  common  to  all  fishers." 

5  and  6  Comyns,  titles  Navigation  and  Prescription.  These 
authorities,  and  others  relied  on  by  the  plaintiff,  cite  the  ancient 
authority  of  Davies  and  the  river  Banne  in  support  of  the  doc- 
trines they  establish. 

On  the  part  of  the  defendant,  has  been  cited  1  Salkeld  357. 
Lord  Holt  says,  "the  subject  has  a  right  to  fish  in  all  navigable 
rivers  as  he  has  in  the  sea."  6  Mod  73 — "Every  subject  of  com- 
mon right  may  fish  with  lawful  nets  in  the  navigable  rivers,  and 
the  king's  grant  cannot  bar  them  thereof.  The  crown  only  has  a 
right  to  royal  fish,  and  that  only,  the  king  may  grant."  In  Lord 
Ray.  725 — "The  public  are,  at  common  law,  entitled  to  towing 
paths  on  the  banks  of  navigable  rivers."  2  Black.  39 — "A  free 
fishery,  or  exclusive  right  of  fishing  in  a  public  river,  is  a  royal 
franchise,  and  is  considered  as  such  in  all  countries  where  the 


NOVEMBER  TERM,  1821.  89 

Arnold  v.  Mnndy. 

feudal  polity  has  prevailed  ;  though  the  making  such  grant,  and 
by  that  means  appropriating  what  it  seems  unnatural  to  restrain, 
the  use  of  running  water  was  prohibited  for  the  future  by  king 
lohn's  great  charter,  so  that  a  franchise  of  free  fishery  ought 
now  to  be,  at  least,  as  old  as  the  reign  of  Henrj'  II."  In  4  Black. 
123-4 — "King  John,  and  afterwards  his  son  Henry  III.  consented 
to  the  two  famous  charters  of  English  liberties,  Magna  Charta 
and  charta  de  foresta,  by  which  care  was  taken  to  protect  the 
subject  against  oppression,  and  every  individual  of  the  nation  in 
the  free  enjoyment  of  his  life,  his  liberty,  and  his  property,  pro- 
hibited for  the  future  the  grants  of  exclusive  fisheries,  and  the 
erection  of  new  bridges  oppressive  to  the  neighbourhood."  The 
same  doctrine  is  recognized  in  Espinasse,  in  Jacob's  L.  D.  and 
other  writers  on  this  subject. 

5  Bac.  Abr.  494,  title  Prerogative — "  The  king's  prerogative  is 
part  of  the  law  of  England,  and  is  a  word  of  large  extent,  in- 
cluding all  the  rights  and  privileges  which  by  law  the  king  hath 
as  head  of  the  commonwealth,  entrusted  with  the  execution  of 
the  laws;  for  as  they  maintain  his  safety,  power,  and  dignity,  so 
they  likewise  declare  the  rights  and  liberties  of  the  subject. 
Hence  it  is  an  established  rule,  that  all  prerogatives  must  be  for 
the  advancement  and  good  of  the  people,  otherwise  they  should 
not  be  allowed  by  law.  The  sovereignty  is  in  the  parliament,  of 
which  the  king  is  only  a  part ;  but,  as  executive  magistrate,  he  ia 
clothed  with  great  powers,  all  intended  for  the  good  of  the  peo- 
ple, none  to  their  detriment,  nor  can  any  prerogative  be  legally 
so  employed.  And  it  is  to  answer  the  ends  of  government,  and 
for  the  good  of  the  people  by  a  fiction  of  law  he  is  considered 
the  universal  occupant  of  all  lands;  not  that  the  people  held  their 
lands  by  any  actual  royal  grant."  Ib.  156-7 — "So  the  king  has 
sovereign  dominion  in  all  seas  and  great  rivers,  and  a  right  to  the 
fisheries  and  to  the  soil,  so  that  if  a  river,  as  far  as  there  is  a  flux 
of  the  sea,  leaves  its  channel  it  belongs  to  the  king,  who  protects  his 
subjects  from  pirates,  and  provides  for  the  security  of  trade  and 
navigation.  But  notwithstanding  the  king's  prerogative  in  seas 
and  navigable  rivers,  yet  it  hath  been  always  held,  that  a  subject 
may  fish  in  the  sea,  which  being  a  matter  of  common  right,  and 
the  means  of  livelihood,  and  for  the  good  of  the  commonwealth, 
cannot  be  restrained  by  grant  or  prescription.  Also,  of  common 
right,  with  lawful  nets  in  navigable  rivers,  as  well  as  in  the  sea, 


90  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

and  the  king's  grant  cannot  bar  them  thereof,  except  royal 
whales  and  sturgeons,  in  which  he  has  a  right  as  a  perpetual 
sign  of  his  dominion,  and  which  only  he  may  grant." 

Ib.  205 — "It  seems  clearly  agreed,  that  the  king  may  alien, 
grant,  or  charge  any  branch  of  his  revenue  in  which  he  has  an 
estate  of  inheritance,  as  also  his  lands  in  fee  simple,  though  seized 
of  them  as  jure  coronas.  This  power  is  founded  on  reasons  of 
state,  as  he  cannot  raise  money  on  the  subject  without  an  act 
of  parliament.  If  he  had  not  the  power  of  aliening  his  lands, 
the  kingdom  might  suffer  from  sudden  invasion,"  &c. 

4  Comyns,  Grant  E — "By  the  grant  of  a  piscary,  the  soil  or 
water  does  not  pass.  By  a  grant  of  water,  the  soil  does  not 
pass.  The  king,  by  his  grant,  cannot  alter  the  law  in  any 
respect,  nor  dispense  with  things  in  which  the  subject  hath  an 
interest,  or  change  the  common  law  by  charter  or  Magna  Charta, 
which  is  incorporated  into  the  common  law."  6  Comyns,  title 
Prerogative  D  7.  Ib.  D  49 — "Every  navigable  river,  as  high  as 
the  sea  flows,  belongs  to  the  king,  but  every  one  may  fish  in  the 
sea  of  common  right." 

On  comparing  all  the  above  authorities,  and  the  reasons  on 
which  they  are  founded,  we  are  compelled  to  acknowledge,  that 
although  the  kings  of  England  formerly  may  have  lavished  on 
favourites,  or  rewarded  the  service  of  individuals  with  many 
franchises  entrusted  to  them  for  the  public  benefit,  yet  the  peo- 
ple ever  considered  it  as  a  violation  of  good  faith,  an  unlawful 
infringement  of  their  common  rights,  and  as  destructive  alike  to 
their  liberties  and  their  interests ;  until  the  evil  increasing  beyond 
endurance,  they,  sword  in  hand,  forced  from  their  king,  the  most 
solemn  and  public  declaration  of  their  rights  in  Magna  Charta. 

I  Black.  Com.  128— "The  absolute  rights  of  every  English- 
man, as  they  are  founded  on  nature  and  reason,  so  they  are 
coeval  with  our  form  of  government.  At  some  times  we  have 
seen  them  oppressed  by  overbearing  and  tyrannical  princes;  at 
others,  so  luxuriant  as  even  to  tend  to  anarchy.  But  the  vigour 
of  our  free  constitution  has  always  delivered  the  nation,  and  the 
balance  of  our  rights  and  liberties  has  settled  to  its  proper  level, 
and  their  fundamental  articles  asserted  in  parliament :  first,  by 
the  great  charter  of  our  liberties  obtained  from  king  John; 
afterwards,  its  confirmation,"  &c. 

If  we  add  to  all  these  the  conduct  pursued  by  the  proprietors 


NOVEMBER  TEEM,  1821.  91 

Arnold  v.  Mundy. 

themselves  in  the  first  settlement  of  New  Jersey,  by  favourable 
and  public  descriptions  of  the  country,  and  by  letters  to  indi- 
viduals to  induce  their  fellow  subjects  to  settle  here,  we  shall  be 
more  and  more  convinced  that  the  claim  of  the  plaintiff  to  the 
exclusive  right  of  this  fishery  is  without  legal  foundation.  In 
Smith's  History  of  New  Jersey  we  find  the  proprietors,  in  1683, 
sent  over  Thomas  Rudyard  as  their  deputy  governor  of  East 
Jersey.  In  May,  the  same  year,  he  writes  from  thence,  page 
168 — "We  have  one  thing  more  particular  here,  which  is  vast 
oj'ster-banks,  which  is  constant  fresh  victuals  during  the  winter 
to  English  as  well  as  Indians ;  of  these  there  are  many  all  along 
our  coasts,  from  the  sea  as  high  as  against  New  York,  where 
they  come  and  fetch  them."  Ib.  170 — "Upon  our  view  and 
survey  of  Amboy  point,  we  find  it  extraordinary  well  situate  for 
a  great  town.  At  low  water  mark,  round  about  the  point,  are 
oysters  of  two  kinds,  some  as  small  as  English,  and  others  two 
or  three  mouthfuls,  exceeding  good.  We  have  store  of  clams, 
esteemed  much  better  than  oysters,  and  fish  we  have  a  very 
great  store.  Sea-nets  are  good  merchandise  here." 

S.  Groom,  another  proprietor,  and  surveyor-general,  writes 
from  Amboy  1781,  page  174 — "The  Indians  come  thither  to  get 
fish,  fowl,  oysters,  clams,  &c.  as  people  go  to  market." 

Gawen  Lawrie,  a  deputy  governor  for  East  Jersey,  writes 
from  Elizabeth-Town,  and,  in  page  177,  says — "Pork  and  beef 
at  two  pence  per  pound ;  fish  and  fowl  plenty;  oysters,  I  think, 
would  serve  all  England."  Again,  in  page  180 — "There  is  a 
great  plenty  of  oysters,  fish,  and  fowl." 

In  page  187,  three  of  the  proprietors  give  a  particular  descrip- 
tion of  East  Jersey,  and  say — "There  are  no  fishermen  that 
follow  only  that  trade,  save  some  that  go  a  whaling  upon  the 
coast;  and  for  other  fish,  there  is  abundance  to  be  had  every 
where  through  the  country,  in  all  rivers,  and  the  people,  with 
sieves,  catch  one  or  two  barrels  a  day,  for  their  own  use,  and  to 
sell  to  others." 

In  page  541,  the  proprietors  describe  the  country,  and  invite 
settlers  thus : — "  It  is  likewise  proper  for  such  who  are  inclined  to 
fishing,  the  whole  coast  and  very  harbours'  mouths  being  fit  for 
it,  which  has  been  no  small  rise  to  the  New  England  people, 
and  may  be  carried  on  with  great  advantage.  The  Indians  catch 


92  NEW  JERSEY  SUPREME  COURT. 

Arnold  v.  Mundy. 

fish,  and  sell  at  a  less  price  than  the  value  of  time  an  Englishman 
must  spend  in  taking  them." 

As  early  as  1718,  (NevilVs  Laws  86)  is  found  "An  act  for 
the  preservation  of  oysters: — Sec.  1.  Whereas  it  is  found  that 
the  oyster-beds  within  this  province  are  wasted  and  destroyed, 
the  preservation  of  which  will  tend  to  the  great  benefit  of  the 
poor  people  and  others  inhabiting  this  province,  all  persons  are 
prohibited  from  raking  or  gathering  oysters  from  off  any  beds  in 
this  province  from  the  10th  of  May  to  the  10th  of  September; 
and  that  no  persons,  at  any  time,  should  carry  them  away  in  any 
boat  or  vessel  not  wholly  owned  by  a  person  living  within  the 
province." 

And  in  this  way  others  wrote  to  their  friends,  and  in  no  part 
of  the  many  public  or  private  communications  of  the  proprietors 
or  inhabitants  do  we  see  even  a  hint  that  the  navigable  rivers 
of  New  Jersey  were  considered  in  any  other  point  of  view 
than,  to  use  their  own  words,  "inlets  which  God  and  nature 
formed"  as  the  highway  to  the  country,  or  the  fisheries  as  any 
thing  more  than  as  the  rich  provision  of  the  same  bountiful 
Creator  for  the  common  use  and  benefit  of  the  settlers.  The 
proprietors  were  men  who  understood  their  rights,  and  were 
fearless  in  the  defence  of  them.  If  those  who  twice  purchased 
New  Jersey;  who  braved  the  dangers  of  an  immense  ocean; 
shared  in  the  toils,  sufferings,  and  privations  of  the  first  settlers; 
who  claimed  all  strays  by  land,  and  wrecks  by  sea,  in  virtue  of 
their  grants,  and  never  for  a  moment  conceived  that  these  grants 
swallowed  up  what,  by  the  law  of  the  land  they  left,  had  ever 
been  considered  the  common  rights  of  Englishmen ;  shall  we,  after 
a  lapse  of  almost  three  centuries,  insult  the  memory  of  men  who 
wore  an  ornament  to  the  human  race,  whose  virtues  have  highly 
exalted  their  names,  and  whose  labours  have  been  a  blessing  to 
the  world,  by  saying,  they  knew  nothing  of  their  privileges,  and 
that  their  birthrights  were  lost  forever  in  the  forests  of  New 
Jersey;  that  their  boasted  Magna  Charta  was  a  farce  from  which 
they  could  derive  no  benefit;  and  that  liberty,  which  they  so 
highly  valued,  was  confined  to  the  grants  and  concessions  ?  or 
that  our  legislatures,  from  time  to  time  taking  upon  them  to 
regulate  fisheries  of  oysters  as  well  as  of  floating  fish  for  the  public 
benefit,  were  totally  ignorant  of  their  powers,  overstepped  the 
bounds  prescribed  by  the  constitution,  to  the  destruction  of  the 


NOVEMBEE  TEEM,  1821.  93 

Arnold  v.  Mundy. 

rights  and  interests  of  individuals?  I  think  not.  The  foregoing 
facts  speak  strong  language,  and  impress  the  mind  more  forcibly 
than  volumes  of  abstruse  and  theoretical  reasoning;  and,  on  a 
careful  examination  of  the  whole  subject,  I  am  of  opinion,  that 
the  plaintiff  had  no  such  property  in  the  oyster-bed  in  question 
by  laying  a  proprietary  thereon,  as  to  give  him  an  exclusive  right 
to  the  oyster  fishery  there. 

On  the  second  point.  I  think  that  question  has  been  decided 
by  this  court  in  the  case  of  Shepard  &  Layton  v.  Leverson  (1 
Pen.  391),  and  although  I  differed  from  my  brethren  in  their 
view  and  determination  of  that  case,  respect  for  their  opinions 
prevents  a  wish,  on  my  part,  to  shake  that  determination.  The 
Chief  Justice  there  says — "That  in  a  common  fishery,  no  man 
can  appropriate  to  himself  any  particular  shoal,  bed  or  spot,  to 
the  exclusion  of  others.  That  the  planting  these  oysters  was 
returning  them  to  their  proper  element  to  mix  with  their  kind, 
and  was,  in  contemplation  of  law,  a  complete  abandonment." 

Justice  Pennington  says — "  It  is  admitted  that  the  plaintiff 
planted  a  quantity  of  oysters  in  a  public  navigable  river,  or  high- 
way, where  the  tide  ebbed  and  flowed,  and  in  which  fish  and 
oysters  were  taken  as  of  right ;  that  there  were  no  oysters  to 
be  found  at  that  particular  spot  at  the  time  of  planting.  Now  al- 
though there  may  not  have  been  any  oysters  on  the  particular 
spot  where  the  oysters  were  pat  down,  at  the  time  of  doing  it, 
yet  there  may  have  grown  oysters  there  since,  in  which  case  he 
would  not  be  entitled  to  all  the  oysters  found  in  the  same  bed. 
This  case  would  resemble  the  case  of  a  stranger  voluntarily 
throwing  his  grain  or  money  into  my  heap,  when,  from  the  dif- 
ficulty of  separation,  caused  by  his  own  folly,  I  would  be  enti- 
tled to  the  whole." 

But  the  present  case  does  not  present  as  fair  a  claim  to  the 
verdict  of  a  jury,  or  the  judgment  of  a  court,  as  the  one  from 
Monmouth.  There  it  was  admitted  that  the  oysters  were  placed 
on  a  part  of  the  bed  of  the  river  where  no  oysters  grew.  Here 
they  were  confessedly  placed  on  an  old  and  frequented  oyster- 
bed.  If  returning  oysters  into  their  natural  element,  the  river, 
even  if  no  oysters  grew  in  that  particular  spot,  and  the  mere 
possibility  of  a  future  increase,  was  such  an  abandonment  of  the 
right  of  ownership  as  to  justify  the  taking  them,  in  the  opinion 
of  the  court,  surely  there  can  be  no  pretence  for  saying,  that 


94  NEW  JERSEY  SUPREME  COURT. 


Arnold  v.  Mundy. 

placing  them  in  that  element  where  oysters  had  grown  for  ages 
was  not,  in  contemplation  of  law,  a  complete  abandonment  of 
the  plaintiff's  right.  On  much  consideration  of  this  case,  I  am  of 
the  opinion  that  the  plaintiff  should  take  nothing  by  his  motion. 
( Therefore,  let  the  rule  to  shew  cause  be  discharged. 

His  honour  Judge  FORD  had  made  up  an  opinion  concurring 
with  his  brethren,  but  did  not  deliver  it  at  large. 

CITED  IH  Silvers  ads.  Reynolds,  2  Harr.  278.  Martin  v.  Wardell,  3  Harr.  507. 
Oough  v.  Bell,  1  Zab.  156.  Oougk  v.  Sell,  2  Zab.  441.  Bell  v.  Gough, 
3  Zab.  624.  Townsend  v.  Brown,  4  Zab.  80.  Inslee  v.  frail,  1  Dutch. 
666.  State  v.  Taylor,  3  Dutch.  117.  Cobb  v.  Davenport.  3  Vr.  369. 
Stevens  v.  Paterson  and  Newark  It.  R.  Co.,  5  Vr.  537.  E»Ull  v.  Brickt- 
burg  L.  &  I.  Co.,  6  Vr.  237.  Wooley  v.  Campbell,  8  Vr.  165.  Associ- 
ates v.  Jersey  City,  4  Hal.  Ch.  724.  Atl'y-Gen.  v.  Z?eZ.  oni  Bound 
Brook  R.  R.  Co.,  12  C.  E.  Qr.  638. 


CASES  DETERMINED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE   OF    NEW   JERSEY, 

AT  FEBRUARY  TERM,  1822. 


THOMAS  WILSON  against  JOSEPH  WILSON. 

IN  CASE. 

1.  Charges  of  cash,  paid,  advanced,  or  lent,  written  on  one  of  the  last  leaves 
of  a  book,  detached  from  the  daily  entries  and  accounts  by  sundry  intervening 
blank  leaves,  and  dated  during  the  time  of  such  entries  and  accounts,  not  evi- 
dence to  go  to  the  jury. 

2.  Book  of  account  not  evidence  of  a  single  charge  of  cash,  or  of  two  or  three 
charges  of  cash  standing  alone. 

3.  Query,  whether  they  are  evidence  of  cash  at  all  ? 

The  nature  of  this  case  will  fully  appear  from  the  opinions 
delivered.  It  came  before  this  court  upon  a  rule  to  shew  cause 
why  the  verdict,  which  had  been  rendered  for  the  plaintiff, 
should  not  be  set  aside. 

Wall,  in  support  of  the  rule.    Armstrong,  contra. 

FORD  J.  This  is  a  rule  to  shew  cause  why  a  verdict  for  the 
plaintiff,  of  $350,  should  not  be  set  aside  on  account  of  the  ad- 
mission of  illegal  evidence.  The  plaintiff's  declaration  contained 
a  count  for  money  lent,  and  in  support  thereof  he  gave  in  evi- 
dence his  book  of  account  containing  several  charges  for  cash, 
amounting  altogether  to  more  than  eight  hundred  dollars. 

According  to  the  principles  of  the  common  law,  a  man's  book 
of  account  cannot  be  produced  in  evidence  in  his  favour;  but  a 
contrary  practice  has  prevailed  for  such  a  great  length  of  time 

(95) 


96  NEW  JERSEY  SUPREME  COURT. 

Wilson  v.  Wilson. 

W 
throughout  all  the  courts  of  judicature  in  this  state,  as  to  have 

formed  a  general  rule  quite  the  other  way,  that  every  man's  book 
of  account  is  evidence  in  his  favour,  provided  the  entries  therein 
made  are  original  entries,  and  were  made  at  the  time  the  trans- 
actions took  place,  or  as  nearly  at  the  time  as  is  usual.  But  this 
general  rule  never  obtained  in  such  latitude  as  to  make  every 
thing  lawful  evidence  that  a  man  chooses  to  write  in  his  book, 
for  then  he  might  enter  in  it  the  testimony  of  an  absent  witness, 
the  confession  of  an  adversary,  or  the  service  of  a  notice.  The 
general  rule  extends  to  no  other  entries  than  for  goods  and 
articles  sold;  work,  labour,  and  services  performed  by  a  man, 
his  servants,  and  means,  and  materials  found  and  provided. 
Beyond  these  limits,  which  take  in  all  trades  and  professions, 
entries  in  a  man's  book  never  were,  and  never  ought  to  be,  evi- 
dence in  his  favour.  The  exceptions  to  the  general  rule  are, 
therefore,  both  numerous  and  important. 

1.  The  charge  of  a  bond,  note,  or  receipt  in  a  book  is  no  legal 
evidence  of  them  or  their  contents.     If  a  man  enter  under  a 
certain  date,  "  J.  S.  this  day  gave  me  his  bond  for  $100,  or  note 
for  $5,"  it  does  not  follow,  because  a  book  of  account  is  evidence 
in  the  owner's  favour,  that  such  entries  are  to  be  received  as 
evidence  of  the  bond  or  note,  for  the  general  rule  comprehends 
only  articles  sold,  work  done,  or  materials  provided,  as  above 
mentioned. 

2.  The  entry  of  a  special  agreement  in  a  man's  book  is  no 
sort  of  evidence  thereof;  as  if  a  man  should  enter  thus  on  his 
book:  "J.  S.  agreed  to  allow  me  $10  for  trespass  done  by  his 
cattle,"  or,  "to  do  the  inside  carpenter  work  of  my  house  for 
$500." 

3.  Another  exception  is,  that  book  entries  are  no  legal  evi- 
dence to  prove  the  borrowing,  lending,  or  payment  of  money ;  as 
if  a  man  enter  in  his  book  thus:  "Paid  J.  S.  this  day,  $500  in 
full  of  my  bond,"  or,  "in  part  of  my  note,"  or,  "  J.  S.  Dr.  to 
cash  $50,"  or,  "to  cash  lent  $100."    Such  entries  are  not  to  be 
received  as  evidence  of  the  fact,  because  they  cannot  come  under 
the^ulo  of  articles  sold,  work  or  services  done,  or  materials  fur- 
nished.    These  naked  transactions  in  money  have  ever  been  con- 
ducted, not  in  books,  but  by  bonds,  bille,  mortgages,  notes,  or 
receipts,  excepting  some  petty  and  irregular  instances  deserving 
no  weight  whatever  against  the  rule.     Money  has  never  been 


FEBRUARY  TERM,  1822.  97 

Wilson  v.  Wilson. 

considered  analagous  to  goods  or  other  articles  sold  for  a  price. 
As  a  branch  of  business  carried  on  by  banks,  brokers,  scriveners, 
and  money-lenders,  it  is  always  carried  on  by  the  means  before 
mentioned;  and  if  each  of  this  description  might  dispense  with 
other  evidence,  and  resort  to  mere  entries  in  their  books  of  uncir- 
cumstantial  and  naked  money,  (as  assuredly  they  may  if  others 
may)  the  const  quences  to  society  would  be  exceedingly  injurious. 
It  is  not  to  be  denied,  that  some  careless  people,  in  cases  mostly 
of  inconsiderable  amount,  have  resorted  to  book  entries  only  of 
cash,  when  they  knew  it  to  be  wrong;  and  some  parties,  even  in 
litigated  accounts,  knowing  such  small  charges  to  be  true  in  fact, 
have  raised  no  objection  to  them,  and  by  these  and  other  means 
many  such  items  have  slidden  into  legal  settlements.  But  the 
great  principle,  that  book  entries  for  cash  are  not  legal  evidence, 
has  been  often  decided,  and  about  thirty  years  ago  this  very 
point  received  a  solemn  determination  in  this  court  upon  a  writ 
of  error  to  the  Common  Pleas  of  Essex.  I  am,  therefore,  of 
opinion,  that  there  ought  to  be  a  new  trial  in  this  case,  and  that 
all  book  entries  of  cash  ought  to  be  rejected  as  illegal  evidence. 

KIRKPATRICK  C.  J.  I  agree  in  opinion  with  my  brother  Ford, 
that  the  verdict  in  this  case  must  be  set  aside,  though  I  am  not 
willing  to  take  such  broad  ground  as  he  has  taken. 

A  book,  regularly  kept,  is  the  history  of  a  man's  daily  transac- 
tions in  matters  of  business.  It  contains  entries  of  his  contracts,, 
of  his  bonds,  bills,  and  notes,  for  how  much,  and  when  payable 
and  receivable;  of  his  purchases  and  sales,  of  his  disbursements 
and  receipts,  of  labour  done  and  services  rendered,  and,  in  short, 
of  all  his  debts  and  credits,  and  of  the  disposition  of  his  cash.  It 
exhibits  to  him  an  exact  state  of  his  affairs  at  the  end  of  every 
day.  Such  a  book  certainly  would  be  entitled  to  great  credit,  but 
yet  the  wisdom  of  the  common  law  did  not  admit  it  as  evidence, 
for  him  that  made  it,  in  a  court  of  justice.  That  law  was  too 
guardful  of  the  rights  of  property  to  admit  a  principle  which 
would  put  it  in  the  power  of  any  man  to  make  evidence  for  him- 
self against  another.  How  far  we  have  been  wise  in  departing 
from  it,  in  this  respect,  is  a  subject  not  now  to  be  examined ;  for, 
however  that  may  be,  it  is  very  certain  that  immemorial  custom 
has  established  a  different  rule  in  this  state,  and  has  admitted  the 
books  of  the  party  in  evidence,  even  though  they  are  not  kept 

VOL.  i.  o 


98  NEW  JERSEY  SUPREME  COURT. 

Wilson  v.  Wilson. 

in  that  regular  and  extended  form  which  I  have  mentioned, 
where  the  entries  might  be  made  to  check  one  another;  and 
though  they  contain  the  debtor  side  of  the  account  only,  which 
affords  no  such  check,  and  that,  too,  without  the  suppletory 
oath  of  the  civil  law,  a  rule  which,  in  the  simplicity  of  the  times 
in  which  it  was  introduced,  might,  perhaps,  have  answered  well 
enough,  but  which,  beyond  all  doubt,  the  lapse  of  a  few  years 
will  shew  to  be  wholly  insupportable  in  an  advanced  state  of 
society.  This,  however,  has  now  become  a  legislative  concern. 
The  rule  has  become  the  law  of  the  land. 

The  credit  to  which  a  book  of  the  sort  last  mentioned  is  enti- 
tled as  matter  of  evidence,  is  derived  from  the  presumption,  that 
though  a  man,  in  the  warmth  of  controversy,  or  the  heat  of  pas- 
sion, might  be  disposed  to  raise  up  false  charges  against  his 
adversaries,  yet  that  no  one  is  so  abandoned  as,  in  his  cooler 
moments,  without  such  excitement,  and  in  the  course  of  his 
daily  business,  deliberately  to  contrive  and  meditate  a  fraud 
against  his  neighbour.  Hence  a  book  of  daily  entries,  contain- 
ing accounts  with  different  people  touching  matters  in  which  a 
man  is  known  to  deal  or  be  employed,  and  which,  according  to 
the  custom  of  the  country,  are  usually  made  matter  of  account, 
has  been  admitted  as  evidence  for  the  jury  under  all  the  circum- 
stances of  the  case,  while  a  detached  paper,  which  might  be 
made  up  for  the  occasion,  had  been  wholly  rejected.  We  have 
even  gone  so  far  as.  to  admit  books  kept  legerwise,  as  it  is  called, 
that  is,  where  each  man's  account  is  kept  by  itself,  if  that 
appeared  to  be  the  general  mode  in  which  the  party  kept  his 
books,  but  not  otherwise,  and  even  then  with  great  caution,  and 
giving  them  but  little  consideration  without  concurring  circum- 
stances to  strengthen  them  and  give  them  weight. 

If  this  be  so,  then,  that  the  party's  book  is  to  be  admitted  as 
evidence  in  his  own  favour,  it  must,  I  should  think,  be  evidence 
of  every  thing  which  it  contains  that  ought  regularly  to  be  entered 
in  a  book,  unless  the  entry  itself  supposes  better  evidence  in  the 
power  of  him  that  offers  it;  as  in  the  case  of  special  and  execu- 
tory contracts,  and  especially  touching  lands,  in  the  case  of  bonds, 
bills,  notes,  &c.  of  which  a  book  can  never  bo  of  plenary  evi- 
dence, because  it  is  not  the  best  in  the  power  of  the  party.  But 
if  there  be  a  charge  for  cash  advanced,  or  paid  on  account,  or 
for  cash  lent,  such  charge,  I  think,  docs  not  imply  that  there  is 


FEBRUARY   TERM,  1822.  99 

Wilson  v.  Wilson. 

better  evidence  behind,  because  I  believe  all  these  things  are 
done  every  day  in  a  greater  or  less  degree,  and  for  a  greater  or 
less  amount,  without  releases,  receipts,  or  objections.  If  such 
charges,  indeed,  should  be  more  frequent,  or  for  larger  sums 
than  would  be  reasonable  to  expect  from  the  circumstances, 
property,  and  dealings  of  such  men,  it  would  subject  them  to 
suspicion,  and  without  some  additional  evidence  would  discredit 
them  altogether;  but  then  this  is  matter  only  for  the  considera- 
tion of  the  jury.  Upon  principle,  I  can  see  no  reason  why  a 
book  should  be  lawful  evidence  of  one  item,  and  not  of  another; 
why  it  should  be  evidence  of  goods  sold  and  delivered,  and  not 
of  money  paid  or  advanced.  Why  should  there  be  witnesses 
called,  or  receipts  taken,  in  the  one  case  more  than  in  the  other? 
If  necessity  be  pleaded  for  the  one,  may  it  not  for  the  other  also? 
for  they  are  both  transactions  in  the  common  course  of  business, 
equalh*  necessary,  and,  I  should  think,  equally  frequent,  or  nearly 
so.  It  has  been  holden  in  this  court,  I  believe,  that  a  naked 
charge  of  cash,  without  shewing  on  what  account,  is  not  good 
in  a  state  of  demand  under  the  act  constituting  courts  for  tho 
trial  of  small  causes,  but  I  am  not  aware  that  we  have  gone 
farther  upon  this  subject,  and  that  was  founded  upon  the  special 
provisions  of  the  act. 

In  the  case  before  us  the  plaintiff  kept  a  book  of  daily  entries 
from  1804  till  1811.  Jn  this  book  there  were  contained,  among 
other  things,  thirteen  charges  against  the  defendant  for  cash 
paid,  advanced,  or  lent,  which,  from  the  face  of  it,  appeared  to 
be  regular  enough.  There,  on  one  of  the  last  leaves  of  the  book, 
separated  from  all  the  other  entries  by  sundry  intervening  blank 
leaves,  and  dated  during  the  same  period  of  time,  were  written 
six  other  distinct  charges  against  the  defendant  for  cash,  without 
stating  for  what  account,  and  amounting  to  $650.  Now  these 
last  entries  appear  to  me  to  be  no  part  of  the  book,  properly 
speaking,  but  to  stand  precisely  in  the  situation  of  a  detached 
paper  written  for  the  purpose  of  this  controversy,  and  to  derive 
no  credit  at  all  from  their  being  written  within  the  cover  of  the 
book,  seeing  they  are  written  upon  pages  wholly  detached  from 
the  daily  entries  and  accounts.  From  this  view  of  the  case,  I 
think  these  last  entries  ought  neither  to  have  been  admitted  as 
evidence,  nor  to  have  been  made  the  ground  of  a  verdict;  not, 
however,  because  they  are  for  cash,  but  because  they  are  no  part 
of  the  plaintiff's  book  of  accounts. 


100  NEW  JERSEY  SUPREME  COURT. 

Gordon  v.  The  New  Brunswick  Bank. 

ROSSELL  J.  I  dissent  from  the  opinion  of  my  brethren,  as 
being,  in  the  first  place,  contrary  to  a  number  of  decisions  of  this 
court,  which  have  allowed  charges  of  cash  in  a  variety  of 
instances;  and  secondly,  as  being  peculiarly  hard  in  the  present 
case.  1  have  taken  the  rule  to  be,  that  a  single,  or  two  or  three 
charges  for  cash,  standing  alone,  would  not  be  proof  sufficient  to 
charge  the  defendants.  But  where  the  parties  had  mutual  deal- 
ings, such  as  in  their  nature  would  warrant  the  idea  that  such 
charges  might  have  happened  in  the  course  of  business  and  bo 
just,  they  ought  to  be  left  to  the  jury.  In  this  case,  I  think,  the 
decision  not  warranted  by  practice.  The  defendant  below  was  a 
farmer,  the  plaintiff  a  butcher:  the  farmer  sold  to  the  latter 
fifteen  cattle,  and  these  charges  were  alleged  to  be,  and  were 
considered  by  the  jury  as  different  payments  on  this  account  for 
cattle.  The  frequent  demand  of  Joseph  on  Thomas,  so  well 
understood  in  the  family,  and  the  repeated  promises  of  Thomas 
to  settle  with  his  brother,  as  well  understood,  I  think,  would  make 
a  case  not  within  the  former  decisions  of  this  court,  and  a  pecu- 
liarly hard  one,  that  is,  to  take  a  large  sum  from  the  plaintiff,  an 
illiterate  man,  who  has  the  verdict  of  a  jury  to  sanction  his  claim. 

New  trial  granted. 

CITED  is  Swing  v.  Sparks,  2  Hal.  59.  Den  v.  Morris,  3  Hal.  213.  Onrman  v. 
Dunham's  Ad.,  6  Hal.  189.  Brannim  v.  Voorhees,  2  Or.  590.  Inalee 
V.  Prall,  3  Zab.  457,  Intlee  v.  Prall,  1  Dutch.  665. 


PETER  GORDON,  treasurer  of  the  state  of  New  Jersey,  against  the  NEW 
BRUNSWICK  BANK. 

OH    BULE  TO   SHEW  CAUSE,   AC. 

1.  Under  the  act  of  November  2d,  1810,  to  tax  bank  stock,  although  the  cap- 
ital of  the  bank  may  have  been  diminished  by  losses,  yet  the  tax  must  be  paid 
on  the  whole  amount  of  the  capital  stock  subscribed  and  paid  in.    Neither  the 
treasurer  or  the  Supreme  Court  could  look  into  the  losses  of  the  bank  and  make 
proportional  allowances  upon  the  tax  to  be  paid. 

2.  But  where  the  legislature  reduces  the  shares  of  tbe  stock  two- fifths  it  is  in 
effect  declaring  that  the  capital  is  reduced  two-fifths,  and  the  bank  shall  only 
pay  tax  on  the  remaining  three-fifths. 

This  case  sufficiently  appears  in  the  opinions  delivered. 

KIRKPATRICK  C.  J.  This  case  came  before  the  court  on  the 
exchequer  side,  on  a  rule  entered  for  that  purpose,  in  vacation, 
by  the  Chief  Justice. 

By  the  act  of  November  2,  1810,  entitled,  "An  act  to  tax 
banks,"  the  president  and  directors  of  the  New  Brunswick  Bank 


FEBRUAEY  TEEM,  1822.  101 

Gordon  v.  The  New  Brunswick  Bank. 

are  required  to  pay  into  the  treasury,  on  the  first  day  of  January, 
every  year,  the  one-half  of  one  per  cent,  upon  the  whole  amount 
of  their  capital  stock  subscribed  and  paid  in.  In  case  of  neglect 
or  refusal  to  pay  this  tax,  as  it  is  called,  it  is  made  the  duty  of 
the  treasurer  to  retura  to  one  of  the  justices  of  the  Supreme 
Court  the  amount  unpaid,  and  of  such  justice  to  issue  a  warrant 
of  distress  to  be  directed  to  the  sheriff  of  the  county,  to  levy 
the  same  of  the  goods  and  lands  of  the  bank. 

In  this  case  the  treasurer  had  made  return  to  the  Chief  Jus- 
tice, stating  that  the  New  Brunswick  Bank  had  neglected  to  pay 
as  it  was  required  to  do,  and  that  the  amount  of  tax  due  upon 
sundry  defaults,  from  January  1,  1817,  till  January  1,  1821,  in- 
clusive, was  $1753.47.5,  that  is  to  say: — 

January  1,  1817,         ....  821  25 

-  1,  1818,      -  -  257  75 

1,  1819,  -  313  75 

1,  1820,      -  -  356  75 

1,  1821,  -  -  675  00 

Interest  calculated  from  dates,  128  97.5 


81753  47.5 

Notice  of  this  return  having  been  given  to  the  president  and 
directors  of  the  bank,  they  resisted  the  issuing  of  the  warrant 
of  distress,  and  in  support  of  their  pretensions,  exhibited  to  the 
Chief  Justice,  at  his  chambers,  certain  receipts,  purporting  to  be 
receipts  of  the  treasurer,  in  full  of  all  taxes  due  from  the  said 
bank  in  the  years  specified  in  the  said  return. 

As  there  appeared,  from  this  representation,  to  be  some  diffi- 
culty in  the  case,  and  as  the  facts  alleged  by  the  bank  could  nei- 
ther be  admitted  nor  suffered  to  be  proved  ex  parte,  a  rule  was 
made  upon  the  officers  of  the  bank  to  shew  cause  at  the  bar  of 
the  Supreme  Court,  on  the  first  day  of  their  next  term,  why  a 
warrant  of  distress  should  not  issue  against  them  for  the'sums  so 
in  arrear,  with  the  interest  thereof  j  and  upon  this  rule  this  cause 
came  on  to  be  heard. 

It  was  admitted  by  the  attorney  general,  for  the  state,  and  by 
the  counsel,  for  the  bank,  that  the  bank  had  insisted  that,  by  sun- 
dry losses  they  had  sustained  a  gradual  diminution  of  their  capi- 
tal from  January  1,  1817,  till  January  1,  1821,  inclusive;  that  in 


102  NEW  JERSEY  SUPREME  COURT. 

Gordon  v.  The  New  Brunswick  Bank. 

paying  their  tax  they  had  paid,  from  time  to  time,  upon  what 
they  called  their  subsisting  capital  only,  and  not  upon  the  capi- 
tal actually  paid  in  ;  and  that  upon  such  payments,  the  treasurer 
had  given  them  the  receipts  in  full,  which  had  been  shewn  to 
the  Chief  Justice  at  his  chambers. 

The  bank,  also,  read  in  evidence  an  act  of  the  legislature  passed 
in  November,  1820,  which  recognizes  the  fact,  that  the  capital 
stock  of  the  said  bank  had  been  reduced  by  losses  sustained, 
and,  therefore,  enacts,  that  the  shares  of  the  said  bank,  which 
had  been  originally  fifty  dollars,  should  be  reduced  to  thirty  dol- 
lars, and  that  the  directors  should  make  dividends  accordingly. 

Upon  this  view  of  the  case,  the  court  expressed  their  opinion, 
that  as  to  the  taxes  of  1817,  '18,  '19,  and  '20,  the  treasurer  had 
no  discretion  on  the  subject.  He  could  not,  lawfully,  look  into 
the  losses  of  the  bank,  and  make  proportional  allowances  upon 
the  tax  to  be  paid.  They  are  to  pay  upon  the  amount  of  the 
capital  paid  in.  Neither  can  this  court,  upon  the  same  principle, 
look  into  such  losses  and  diminution  of  capital.  The  act  is  per- 
emptory and  unyielding;  but  as  to  the  tax  of  January  1,  1821, 
the  case  is  different.  The  legislature  themselves  had  then  recog- 
nized the  loss,  and  in  effect  declared  their  capital  to  be  reduced 
two-fifths,  and  it  would  be  contrary  to  all  equity,  as  well  as  to 
the  true  spirit  of  the  act  itself,  to  compel  them  to  pay  tax  upon 
a  capital  which  they  did  not  possess. 

For  the  deficiency  of  the  tax,  therefore,  in  1817,  '18,  '19,  and 
'20,  with  the  interest  from  the  time  the  same  ought  to  have  been 
paid,  the  warrant  of  distress  must  go,  but  not  for  the  deficiency 
of  the  tax  of  1821. 

N.  B.  Upon  this  opinion  being  rendered,  it  is  understood  that 
the  bank  paid  the  deficiencies  adjudged  against  them,  and  no 
further  application  has  been  made  for  a  warrant  of  distress. 

ROSSELL  J.  Two  questions  in  this  case  are  submitted  to  tho 
court.  1.  That  the  law  taxing  tho  capital  of  banks  is  unconsti- 
tutional. 2.  That  as  the  bank  had  lost  a  considerable  part  of 
their  capital,  and  had  the  treasurer's  receipt  in  full  for  the  amount 
of  tax  paid  on  their  diminished  capital,  that  the  state  has  no 
right  to  recover  in  this  action. 

The  clause  in  our  constitution  that  provides  for  the  appoint- 
ment of  commissioners  of  appeal  in  all  cases  of  taxation,  does 


FEBRUARY  TERM,  1822.  103 

Gordon  v.  The  New  Brunswick  Bank. 

not,  as  I  conceive,  apply  to  cases  like  the  present.  The  practice 
under  any  law,  if  long  continued,  is  generally  its  best  interpreter, 
and  we  find  that  this  clause,  ever  since  the  adoption  of  the  'con- 
stitution, has  been  confined  to  the  general  tax  on  real  and  per- 
sonal estate  where  the  partiality  or  ignorance  of  the  assessor 
might  occasion  injury  to  individuals.  But  assessments  of  a  sum 
of  money  on  tavern  keepers,  on  attorneys  and  counsellors,  &c. 
for  the  privileges  they  claimed,  was  a  tax  from  which  there  was 
no  appeal,  although  on  the  former  no  precise  sum  was  fixed,  but 
left  discretionary  with  the  court  within  certain  limits.  On  banks 
generally  the  sum  was  fixed  at  one  half  of  one  per  cent,  on  their 
capitals  actually  paid  in.  This  could  not  be  exceeded  or  dimin- 
ished. The  bank  gave  in  their  capital,  the  law  fixed  the  amount 
that  capital  should  pay,  what  power  could  commissioners  of 
appeal  have  in  a  case  like  this  ?  certainly  none.  But  this  ques- 
tion was  settled  some  years  ago,  vide  the  Treasurer  v.  the  Jersey 
Sank.  Pen.  Eep.  And  the  judgment  of  this  court  was  affirmed 
in  the  Court  of  Errors. 

And  the  second  is  the  only  point  left  for  the  decision  of  this 
court.  Is  the  receipt  of  the  treasurer  in  full  for  a  num  less  than 
the  original  tax,  conclusive?  I  think  not.  This  court  has  no 
power  to  equitize,  the  positive  words  of  the  statute  is  their  only 
guide.  The  bank  returned  to  the  treasurer  $250,000,  as  their 
capital  actually  paid  in ;  one  half  of  one  per  cent,  on  that  sum 
they  were  to  pay  for  the  privilege  of  issuing  their  notes.  The 
allegation,  that  this  capital  was  lessened  by  various  losses,  did 
not  authorize  the  treasurer  to  lessen  the  sum  they  had  volun- 
tarily paid  in.  Their  application  for  relief  should  have  been  to 
the  legislature.  I  am,  therefore,  of  opinion,  that  judgment 
should  go  against  the  bank  for  the  deficiency 

FOED  J.  concurred. 

CITED  IN  Rudderow  v.  State,  2  Vr.  512. 


104  NEW  JERSEY  SUPREME  COURT. 


Bateman  v.  Connor. 


MOSES  BATEMAN,  survivor  of  Moses  Bateman  and  Amos  Fithian,  trustees 
of  Lorenzo  Laurence,  against  WM.  CONNOR  and  BENJ.  JAGGERS. 

IN  CASE. 

A.  makes  an  assignment  to  B.  and  C.  of  all  his  property,  to  be  sold  by  them 
for  the  payment  of  his  debts.  The  creditors  of  A.  not  allowed  to  offset  their 
demands  against  A.  in  payment  of  articles  purchased  at  the  vendue  made  by  B. 
and  C.  of  the  goods  of  A. 

And  although  B.  invites  creditors  of  A.  to  purchase,  by  telling  them  they 
may  offset  their  demands  .against  A.  in  payment,  yet  if.  after  this  invitation, 
articles  of  vendne  are  publicly  declared  at  the  sale  which  contain  no  such 
stipulation  in  favour  of  creditors,  such  offset  will  not  be  allowed. 

This  was  an  action  of  assumpsit,  tried  before  bis  honour 
Justice  Rossell,  at  the  Cumberland  circuit.  The  declaration  was 
for  the  value  of  one  half  of  the  sloop  called  the  Ann  and  Betsey, 
sold  to  the  defendants  for  $920.  The  defendants  pleaded  non 
assumpsit,  and  also  specially,  "  that  Lorenzo  Laurence  was 
indebted  to  the  defendants  in  the  sum  of  $1200  for  goods  sold, 
and.  being  so  indebted,  he  made  an  assignment  of  all  his  prop- 
erty to  Amos  Fithian  and  Moses  Bateman,  for  the  purpose  of 
satisfying  and  paying  the  said  defendants,  creditors  of  the  said 
Lorenzo  Laurence,  and  avers  that  the  said  vessel,  called  the  Ann 
and  Betsey,  was  assigned  by  said  Lorenzo  Laurence  to  said 
Amos  Fithian  and  Moses  Bateman,  and  by  them,  as  the  assigns 
or  agents  of  said  Lorenzo  Laurence,  sold  and  delivered  to  the 
said  defendants,  in  part  payment  of  the  said  sum  of  $1200  duo 
from  the  said  Lorenzo  Laurence  to  the  said  defendants,  which 
said  sum  exceeded  the  damages  mentioned  in  the  declaration, 
and  out  of  which  the  said  defendants  wore  willing,  and  offered, 
to  set  off  and  allow  to  the  said  Amos  Fithian  and  Moses  Bate- 
man, the  full  amount  of  the  said  damages,  according  to  the  form 
of  the  statute,"  &c. 

To  this  plea  was  subjoined  a  notice  of  offset,  in  substance,  the 
Bame  as  the  plea.  The  jury  found  a  verdict  for  the  defendants 
for  $454.20,  which  sum  was  immediately  remitted  by  them  upon 
the  record.  The  plaintiff  obtained  a  rule  to  shew  cause  why  the 
verdict  should  not  be  set  aside,  and  a  new  trial  granted.  The 
reasons  for  granting  the  new  trial  sufficiently  appear  in  the 
opinions  delivered. 

Giles,  for  plaintiff.    Jeffers,  for  defendant. 

K.IRKPATRICK  C.  J.  It  appears  by  the  case  stated,  that  ono 
Lorenzo  Laurence,  being  indebted  to  sundry  persons,  on  the 


FEBRUARY  TERM,  1822.  105 

Bateman  v.  Connor. 

14th  of  April,  1817,  made  an  assignment  of  all  his  property  to 
Moses  Bateman,  the  above  plaintiff,  and  Amos  Fithian,  now 
deceased,  as  trustees,  to  be  sold  for  the  payment  of  all  his  debts. 
That  Bateman  and  Fithian,  May  7,  1817,  sold  the  said  prop- 
erty at  public  auction;  that  the  conditions  of  the  sale,  as 
written  and  proclaimed,  were,  that  all  sums  under  three  dollars 
should  be  paid  in  cash,  and  all  above  three  dollars,  in  notes  at 
sixty  days,  with  security,  if  required ;  that  at  this  auction  they 
sold  to  Connor  and  Jaggers,  the  defendants,  the  one  half  of  the 
sloop  Ann  and  Betsey,  for  the  sum  of  §920 ;  and  that  for  this 
sum  this  action  is  brought. 

The  defendants  pleaded  payment  with  notice  of  set-off;  and, 
on  the  trial,  they  offered  to  prove  by  one  David  Whitaker,  and 
were  permitted  to  prove,  though  the  evidence  was  objected  to, 
that  Fithian,  one  of  the  trustees,  a  few  days  before  the  vendue, 
requested  the  witness  to  see  Connor  and  Jaggers,  and  desire  them 
to  attend  the  sale  of  Laurence's  property ;  and  to  inform  them, 
that  whatever  purchases  they  should  make,  should  be  considered 
as  in  payment  of  the  debt  due  to  them  from  Laurence,  and  should 
be  set-off  against  it  accordingly.  They  then  offered  to  prove,  and 
to  give  in  evidence,  and  by  permission  of  the  court,  after  objec- 
tion made,  did  prove  and  give  in  evidence,  the  three  promissory 
notes  made  to  them  by  Laurence,  and  specified  in  the  notice 
accompanying  their  plea,  and  there  they  rested  their  defence. 

Upon  this  evidence,  the  jury  rendered  a  verdict  for  the  defend- 
ants for  $454.20,  which  sum  was  immediately  remitted  by  them 
upon  the  record. 

That  these  defendants  could  not  make  this  set-off  upon  gen- 
eral principles,  is  a  position  too  clear  to  admit  of  argument.  It 
may  be  likened  to  a  purchase  made  at  the  sales  of  executors  or 
administrators,  or  of  the  assignees  of  a  bankrupt's  estate,  in  which 
cases,  as  well  as  many  others,  though  the  purchaser  may  have  a 
just  demand  against  the  estate,  yet  he  cannot  make  a  set-off,  but 
must  pay  the  purchase  money  in  the  first  place,  because  he  is  not, 
necessarily,  to  receive  his  whole  debt,  but  a  rateable  proportion 
of  it  only;  otherwise  one  creditor  might  swallow  up  the  whole 
estate,  which  the  law  will  not  permit.  The  conduct  of  the  defend- 
ants themselves,  too,  is  confirmatory  of  this  principle,  because  if 
their  set-off  was  a  matter  of  right  upon  the  general  principles 
of  the  law,  then  the  balance  found  in  their  favour  would  have 


106  JNETV  JERSEY  SUPREME  COURT. 

Bateman  v.  Connor. 

been  a  just  balance  against  the  estate  upon  which  they  would 
have  been  entitled  to  their  rateable  proportion  of  the  property 
assigned,  and,  therefore,  could  never  have  been  remitted  upon 
rational  principles. 

The  right  of  the  defendants,  therefore,  to  set-off  in  this  case, 
if  any  they  had,  must  depend,  not  upon  general  principles,  but 
upon  special  contract.  Let  us  see,  then,  what  that  contract  is. 
Fithian,  one  of  the  trustees,  some  days  before  the  sale,  made  an 
offer,  through  a  third  person,  to  the  defendants,  that  if  they 
would  purchase  at  the  sale,  the  amount  purchased  should  be  set- 
off  against  their  debt  due  from  Laurence.  But  then,  at  the  day 
of  sale,  there  were  written  conditions  publicly  proclaimed,  which 
contained  no  such  stipulation  in  favour  of  these  defendants,  or 
any  body  else,  but,  on  the  contrary,  required  payment  of  every 
body,  either  in  cash,  or  in  notes  at  sixty  days. 

It  is  to  be  observed  upon  this  state  of  the  case — 1.  In  the  first 
place,  that  Fithian  alone  could  not  make  a  contract  that  would 
bind  the  trustees.  The  power  of  the  trustees  is  joint,  and  not 
several,  one  cannot  contract  alone. 

2.  In  the  second  place,  even  if  he  could  make  such  contract, 
yet  what  he  said  in  this  case  was  but  an  offer,  which  the  defend- 
ants never  accepted  before  the  sale  in  such  way  as  to  close  t  he 
contract,  and  they  cannot  be  at  liberty,  after  the  sale,  to  make  it 
a  contract,  or  not,  as  they  please.     In  that  case,  it  would  be  a 
contract  on  one  side,  and  not  on  the  other,  which  cannot  be. 

3.  In  the  third  place,  the  written  conditions  made  by  both  the 
trustees,  and  publicly  proclaimed  at  the  time  of  the  sale,  neces- 
sarily supersede  the  offers  made  by  one  of  them  only,  at  any 
previous  time.     It  is  a  declaration  by  both,  that,  upon  consulta- 
tion, they  have  not  agreed  to  the  proposal  made  by  the  one  only. 

4.  In  the  fourth  place,  unless  the  contract  were  so  complete, 
definite,  and  binding,  as  that  it  could  not  be  overcome,  it  ought 
not  to  prevail  in  this  case,  because  it  is  contrary  to  the  nature 
of  the  trust,  to  the  duty  of  the  trustees,  and  to  the  rights  of 
other  creditors ;  for  the  property  is  assigned  to  pay  the  debts 
t'n  toto,  if  sufficient,  and  pro  rata,  if  not.   Such  a  contract,  there- 
fore, would  be  a  direct  invasion  of  the  rights  of  other  creditors. 
It  would  be  appropriating  the  property  assigned  for  the  benefit 
of  all,  to  the  benefit  of  a  few  only. 

I  am  of  opinion,  therefore,  that  the  jury  have  mistaken  the  law 


FEBKUAKY  TEEM,  1822.  107 

Bateman  v.  Connor. 

in  making  up  their  verdict  in  this  case,  and,  therefore,  that  the 
verdict  must  be  set  aside,  and  a*new  trial  granted. 

FORD  J.  This  case  conies  before  the  court  on  a  rule  to  shew 
cause  why  the  verdict  obtained  by  the  defendants  should  not  be 
set  aside,  and  a  new  trial  ordered.  The  case  appeared  to  be  as 
ibllows:  Lorenzo  Laurence  assigned  and  conveyed  all  his  goods 
to  Moses  Bateman  and  Amos  Fithian,  in  trust,  to  divide  the 
avails  thereof  equally  among  his  creditors.  The  trustees  made 
sale  of  these  goods  at  auction,  when  the  sloop  Ann  and  Betsey 
was  struck  off  to  the  defendants,  at  $920.  The  condition  of 
these  sales  was  in  writing,  and,  at  the  opening  of  the  auction, 
was  read  publicly  by  the  cryer,  that  for  all  sales  above  $3,  pur- 
chasers should  give  their  notes  at  sixty  days,  with  security,  if 
required.  The  defendants  took  and  converted  the  sloop  to 
their  own  use,  and,  to  an  action  for  the  money;  pleaded,  that 
the  sloop  was  sold  to  them  in  payment  of  a  debt  owing  to  them  by 
Lorenzo  Laurence.  In  support  of  the  issue,  David  Whitaker 
testified  thus:  "Amos  Fithian  told  me,  he  hoped  the  creditors 
would  generally  attend,  or  the  goods  would  go  for  nothing;  I 
told  him,  I  understood  they  intended  to  make  the  creditors  give 
notes  for  what  they  bought;  he  replied,  that  what  I  bought 
should  be  offset  against  the  note  I  held  against  Laurence;  and 
he  asked  me  to  see  Connor  and  /aggers,  and  tell  them  to  attend 
also.  I  accordingly  told  them  what  he  said.  I  understood 
him  to  say,  that  purchases  by  any  creditors  (not  me  alone) 
should  be  offset;  I  meant  to  convey  the  idea  to  Connor  and 
Jaggers,  and  I  believe  I  did,  that  what  they  purchased  should 
be  offset  against  their  debt."  The  defendants  then  gave  in  evi- 
dence three  notes  against  Laurence,  exceeding  the  amount  of 
the  sloop  by  $454.20.  The  court  charged  the  jury,  that  the 
assignees  are  not  only  agents  for  the  debtor,  but  trustees  for 
the  creditors,  and  had  a  right  to  make  any  arrangement  with 
the  creditors;  and  if  the  jury  believed  that  the  defendants  pur- 
chased under  this  arrangement,  their  verdict  would  be  accord- 
ingly. The  jury  found  a  verdict  of  $454.20,  for  the  defendants, 
which  amount  the  defendants  remitted  on  the  record. 

Lorenzo  Laurence  yielded  up,  irrevocably,  all  right  and  title 
to  these  goods,  and  they  became  the  property  of  the  trustees  in 
law.  If,  then,  the  trustees  were  owners,  they  could  not  hold  as 


108  NEW  JERSEY  SUPREME  COURT. 

Bateman  v.  Connor. 

agents,  for  the  two  characters  are  incompatible  in  their  nature. 
The  power  of  agents  is  revocable,  but  this  assignment  was  abso- 
lute ;  the  authority  of  an  agent  is  subordinate  to  his  principal,  but 
here  the  trustees  were  owners  and  principals.  If  the  plaintiffs 
sold  as  agents  for  Laurence,  then  the  sale  was  made  by  Laurence, 
and  he,  only,  could  maintain  an  action  for  the  price  of  the  sloop. 
Agents  and  their  principals  are  one  in  law,  and,  therefore,  the 
jury  had  a  plausible  reason  for  finding  $45420  against  the  plain- 
tiffs, because  Laurence  owed  so  much  to  the  defendants:  but  the 
principle  itself  was  wrong.  The  trustees  were  independent  owners 
of  the  property  in  law,  and  sold  it  in  their  own  names  and  right. 
There  is  another  reason  of  equal  or  superior  weight  in  my 
mind,  for  granting  a  new  trial  in  this  case,  which  is,  that  the  ver- 
dict finds  the  issue  for  the  defendants  wholly  contrary  to  evi- 
dence. Their  only  witness  to  prove  an  agreement  to  offset  was 
David  Whitaker,  by  whom  Amos  Fithian  sent  an  invitation  to 
Connor  and  Jaggers,  as  creditors,  to  attend  the  auction,  with  an 
offer,  that  their  demands  against  Laurence  should  be  an  offset 
against  what  they  might  bid.  I  say  nothing  about  the  question- 
able manner  in  which  this  evidence  was  detailed,  not  as  what 
Fithian  said,  but  from  what  he  did  say,  how  the  witness  under- 
stood or  interpreted  his  meaning.  I  also  pass  over  the  fact  of  this 
offer,  in  case  it  was  really  made  by  Amos  Fithian,  only  one  of  the 
trustees,  not  being  concurred  intby  the  other,  and  that  it  was  in 
direct  violation  of  their  trust.  It  was  an  indiscreet  offer,  and 
most  expressly  and  publicly  revoked  before  the  sale.  Whitaker 
Bays,  it  was  an  offer,  as  he  understood  it,  to  all  creditors.  Granted. 
But,  after  this  period  of  time,  and  just  as  the  auction  was  about 
to  commence,  the  trustees  declared  publicly  the  condition  of 
sale;  they  reduced  it  to  writing,  for  fear  of  mistake,  and  caused 
it  to  be  read  and  proclaimed  by  their  cry er,  in  which  no  privilege 
of  offset  was  contained,  but,  on  the  contrary,  that  "all  purchasers 
above  $3  were  to  give  their  notes  for  the  money  in  sixty  days, 
with  security,  if  required."  Every  bid,  made  and  accepted  at 
the  auction,  was  made  and  accepted  on  this  condition,  in  point 
of  law.  Yet  the  jury  have  found  directly  contrary  to  the  only 
condition  proved,  and  in  favour  of  a  condition  that,  if  proved, 
was  legally  revoked  before  the  sale  began.  After  such  revoca- 
tion, and  the  publication  of  written  conditions,  it  is  not  conceiv- 
able that  Connor  and  Jaggers  supposed  there  were  any  others 


FEBEUARY  TERM,  1822.  109 


Cook  v.  Green. 


Such  a  supposition  would  go  to  impugn  the  legal  right  of  execu- 
tors, administrators,  and  all  persons  to  prescribe  the  conditions 
under  which  they  sell.  This  verdict  is  also  contrary  to  the  jus- 
tice of  the  case.  Connor  and  Jaggers,  as  cestuyque  trusts  are  en- 
titled to  their  equal  and  rateable  proportion,  and  equality  is 
equity ;  but  in  this  way  they  will  swallow  up  the  rights  of  all 
the  other  creditors. 

Let  the  rule  for  new  trial  be  granted. 


BENJAMIN  COOK  against  JOSEPH  GREEN. 

OK  CERTIORARI. 

If,  after  a  jury  has  retired,  they  require  further  explanation  from  the  conrt, 
and  the  court,  after  calling  upon  the  counsel  of  the  defendant  to  go  with  him, 
who  refuses,  and  after  seeking  for  the  defendant,  who  cannot  be  found,  goes  into 
the  jury  room  and  gives  them  the  explanation  they  require,  this  is  not  error. 

This  case  will  be  sufficiently  understood  by  the  opinion  of 
the  court,  delivered  by  Justice  Ford. 
Miller,  attorney  for  plaintiff  in  certiorari. 

FORD  J.  The  justice  states,  "  That  after  the  jury  had  been 
out  a  short  time,  they  tent  for  the  court,  in  their  room  to  explain. 
I  called  for  the  parties,  and  it  appeared  the  defendant  had  ab- 
sconded, although  under  a  warrant,  and  his  counsel  refused  to 
go  in.  I,  however,  went  in,  and  found  they  wished  the  opinion 
of  the  court  on  the  endorsement  of  the  note,  as  there  was  no 
date  to  it.  My  answer  was,  that  I  should  consider  it  as  due  when 
endorsed,  as  it  was  thus  intimated  on  the  plaintiff's  state  of  de- 
mand, and  not  denied  by  the  defendant  in  his  pleading." 

If  a  jury,  after  withdrawing  to  consider  the  cause,  get  embar- 
rassed on  a  question  of  law,  they  may,  and  in  prudence  ought 
to,  ask  for  the  opinion  of  the  justice  thereon,  and  it  is  his  duty 
to  declare  the  law  to  them.  It  should  be  done  in  presence  of 
both  parties,  that  they  may  except  to  the  opinion  for  error  if 
they  think  it  erroneous,  and,  therefore,  they  ought  to  be  called, 
and  even  sought  for,  by  the  constable,  or  other  person  deputed 
by  the  court.  But  if  sought  for  honestly  at  the  place  of  trial, 
where  they  ought  to  be,  they  cannot  be  found,  or,  being  found,  they 
or  either  of  them  refuse  to  attend,  such  absence  or  refusal  does  not 
release  the  justice  from  his  duty  to  declare  the  law  to  the  jury. 


110  NEW  JERSEY  SUPREME  COURT. 

Crane  v.  Sayre. 

These 'small  causes  are  tried,  for  the  most  part,  in  private 
houses,  where  apartments  are  not  numerous  or  very  commodi- 
ous, and  whether  the  justice  delivers  his  charge  in  the  room 
where  the  trial  was  heard,  or  in  the  room  where  the  jury  is  con- 
vened, is  wholly  immaterial  in  law  and  in  reason,  provided  there 
is  notice,  or  a  reasonable  effort  to  give  notice  to  parties  to  bo 
present,  and  the  room  is  made  public  to  every  body  during  the 
charge.  But  if  a  justice  should  go  into  the  jury  room  secretly 
and  unknown  to  parties,  and  there  hold  private  conference  with 
the  jury,  it  would  excite  allowable  jealousies  in  both  parties,  and 
be  such  an  outrage  upon  the  essential  forms  of  trial  by  jury,  as 
to  vitiate  all  the  proceedings.  In  the  present  case,  there  was  no 
such  thing  as  secrecy  on  the  part  of  the  justice,  he  gave  notice, 
he  invited  the  counsel  of  defendant  to  attend,  and  his  charge  was 
public  to  all  who  chose  to  attend.  I  think  he  acted  not  only  right 
but  honourably  as  became  his  station,  and  therefore, 

Let  the  judgment  be  affirmed. 


ELISHA  CRANE  against  JOSEPH  SAYRE. 

ON   CEBTIOEARI. 

1.  The  appraisers'  certificate  of  damages  done  to  the  plaintiff  may  be  given 
in  evidence  in  an  action  of  trespass  after  the  appraisers  themselves  have  been 
both  examined. 

2.  A  verdict  is  never  set  aside  for  a  juror's  misbehaviour  towards  the  court, 
unless  it  is  prejudicial  to  one  or  other  of  the  parties. 

PENNINGTON,  attorney  for  plaintiff.    Dod,  for  defendant. 
The  opinion  of  the  court  was  delivered  by 

FORD  J.  Elisha  Crane's  oxen  broke  into  Joseph  Sayre's  corn- 
field and  committed  depredations  which  two  men,  chosen  by 
the  parties,  appraised  at  830  damages,  and  so  certified  under 
their  hands.  Sayres  brought  an  action  of  trespass,  and  recovered 
judgment  for  $9.  He  had  each  appraiser  sworn,  as  a  witness,  and 
examined  them,  after  which  he  offered  their  certificate  in  evi- 
dence, but  it  was  objected  to ;  and  while  the  argument  was  pend- 
ing to  the  justice,  some  of  the  jurors  left  the  room  and  returned 
again,  without  leave  or  consent,  and  without  an  officer  to  attend 
them.  The- justice  allowed  the  certificate  to  be  read;  and  now 
two  reasons  are  assigned  for  a  reversal  of  the  judgment:  first, 


FEBRUARY  TERM,  1822.  Ill 

Roome  v.  Counter. 

because  the  justice  admitted  illegal  evidence;  and  second,  because 
the  jury  misbehaved  themselves. 

1.  The  certificate  was  not  admissible  as  primary  evidence,  nor 
offered  as  such  ;  the  appraisers  had  been  previously  sworn,  and 
might  have  used  the  paper  to  refresh  their  memories  while  under 
examination,  which  is  nearly  the  same  thing,  in  substance,  as 
giving  it  in  evidence.     Moreover,  what  a  witness  has  said  or 
written  at  a  prior  time  may  be  adduced  after  he  has  been  ex- 
amined, either  to  corroborate  or  to  impeach  his  consistency. 
And  as,  from  the  nature  of  case  and  circumstances,  the  certifi- 
cate could  have  little  or  no  effect  in  itself,  after  the  appraisers 
had  both  been  examined  viva  voce,  I  think  the  judgment  ought 
not  to  be  reversed  for  this  cause. 

2.  A  juryman  who  leaves  his  fellow  jurors  without  notice  or 
leave,  certainly  treats  the  court  with  great  contempt,  for  which 
a  fine  ought  to  be  imposed  on  him  as  soon  as  the  verdict  is  ren- 
dered, and  he  ought  to  be  committed  till  the  fine  is  paid.     It 
would  retard  the  trial  extremely,  and  work  great  confusion  for 
the  parties,  if  the  court  had  to  call  the  list  of  jurors  every  few 
minutes  to  be  sure  they  were  all  present,  as  must  be  done  if 
jurors  may  go  off  without  notice  or  leave.     But  a  verdict  is 
never  set  aside  for  a  juror's  misbehavour  towards  the  court,  unless 
it  is  prejudicial  to  one  or  other  of  the  parties,  and  no  such  thing 
appears  in  this  case. 

Let  the  judgment  be  affirmed. 

CITED  IN  Oram  v.  Bishop,  7  Hal.  159. 


SAMUEL  KOOME  and  CASPARUS  DODD,  surviving  executors  of  Harma- 
nus  Counter,  deceased,  against  ISAAC  COUNTER. 

IN   ERROR. 

Harmanus  Counter,  the  testator,  had  two  sons,  Henry  and  Peter,  and  fiv« 
daughters,  Sarah,  Anna,  Susannah,  Elizabeth,  and  one  who  was  deceased.  Peter, 
one  of  the  sons,  died  before  the  date  of  the  testator's  will,  leaving  ten  children, 
who  were  living  at  the  time  of  this  trial.  After  making  provision  for  all  the 
surviving  children,  and  having  given,  also,  the  plantation  on  which  Peter  had 
lived  in  his  lifetime  to  two  of  his  sons,  the  testator  makes  the  following  bequest: 
"Item,  it  is  my  will,  that  all  the  remainder  of  my  moveable  estate  shall  be 
equally  divided :  that  is  to  say,  Henry  Counter,  and  the  heirs  of  my  son  Peter 
Counter,  Amos  Roome,  Susannah  Berry,  Elizabeth  Dodd,  and  Sarah  Counter." 
The  children  of  Peter  Counter  take  per  stirpes,  and  not,  per  capita. 

This  case  came  before  the  court  on  a  writ  of  error  from  the 
Common  Pleas  of  Morris  county.  The  following  errors  were 
assigned  for  the  reversing  the  judgment  of  the  Common  Pleas. 


112  NEW  JERSEY  SUPREME  COURT. 

Roome  v.  Counter. 

1.  For  that  the  said  judges  of  the  said  Inferior  Court  of  Com- 
mon Pleas  did,  upon  the  trial  of  said  issue  before  them,  give  it 
in  charge  to  the  said  jury,  duly  cmpannelled  and  sworn,  as  afore- 
said, to  try  the  said  issue ;  that,  according  to  the  evidence  in  the 
said  cause,  to  the  said  jury  given,  and  by  the  laws  of  the  land, 
the  plaintiff   below,  the  said  Isaac  Counter,  was   entitled  to 
recover  the  one-fifteenth  part  of  the  residue  of  the  personal 
estate  of  the  said  Harmanus  Counter,  deceased.     Whereas,  by 
the  said  evidence,  and  the  law  of  the  land,  the  said  plaintiff  was 
entitled  to  recover  only  the  one-tenth  of  the  one-sixth  of  the 
aforesaid  residue. 

2.  That  the  verdict  and  judgment  were  given  for  the  plaiutiff 
for  the  one-fifteenth  of  the  said  residue,  whereas,  by  the  lavr  of 
the  land,  the  said  verdict  and  judgment  should  have  been  given 
for  no  more  than  the  one-tenth  of  the  one-sixth  of  the  said  resi- 
due. 

The  case  was  submitted  to  the  decision  of  this  court,  without 
argument,  upon  the  following  state  of  the  case. 

The  plaintiff  below,  the  said  Isaac  Counter,  prosecuted  the 
defendants  in  the  Inferior  Court  of  Common  Pleas  of  the  county 
of  Morris,  to  recover  his  share  of  a  certain  bequest  in  his  grand- 
father's will,  the  said  Harmanus  Counter,  deceased. 

The  said  will,  and  the  accounts  of  the  said  executors,  as  set- 
tled in  the  Orphans'  Court  of  the  county  of  Morris,  were  given 
in  evidence  (prout  the  same.  The  bequest  in  the  will,  upon 
which  the  question  arose,  sufficiently  appears  in  the  opinion  of 
the  Chief  Justice.) 

It  was  admitted  by  the  parties  in  the  cause,  on  the  trial,  that 
Peter  Counter,  the  father  of  the  said  Isaac  Counter,  the  plain- 
tiff, and  who  is  named  in  the  said  will,  was  dead  at  the  date  of 
the  said  will,  leaving  ten  children,  all  living  at  the  time  of  the 
said  trial,  of  whom  the  said  plaintiff  was  one ;  that  Susannah 
and  Anna  Mandeville,  in  the  said  will  named,  are  grandchildren 
of  the  said  testator;  and  further,  that  a  refunding  bond  was 
duly  tendered  by  the  plaintiff  to  the  defendants,  upon  the  com- 
mencement of  the  said  suit. 

The  plaintiff  then  rested  his  cause.  The  court,  upon  this, 
gave  it  in  charge  to  the  jury,  that  the  plaintiff,  by  the  said  will 
of  Harmanus  Counter,  deceased,  was  entitled  to  recover  the  one- 
fifteenth  part  of  the  residue  of  the  personal  estate  of  the  said 


FEBRUARY  TERM,  1822.  113 

Roome  v.  Counter. 

Harmanus  Counter,  deceased ;  to  which  the  defendants  excepted, 
and  prayed  a  bill  of  exceptions  to  the  said  opinion  of  the  court, 
and  it  was  allowed  and  sealed.     The  jury  rendered  a  verdict  for 
the  plaintiff  according  to  the  said  opinion  of  the  court. 
Frelinghuysen,  for  plaintiff  in  error.     Ford,  for  defendant. 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

KIRKPATRICK,  C,  J.  It  appears  by  the  state  of  this  case,  and 
by  the  inspection  of  the  will  in  question,  that  Harmanus  Coun- 
ter, the  testator,  had  two  sons,  Henry  and  Peter,  and  five  daugh- 
ters, Sarah,  Anna,  Susannah,  Elizabeth,  and  one  who  married 
one  Mandeville,  who  is  now  deceased ;  that  Peter,  one  of  the 
sons,  died  before  the  date  of  this  will,  leaving  ten  children,  who 
were  then  living,  and  were  still  living  at  the  time  of  this  trial  j 
that  after  making  provision  for  all  the  surviving  children,  and 
having  given,  also,  the  plantation  on  which  Peter  had  lived  in 
his  lifetime  to  two  of  his  sons,  the  testator  makes  the  following 
bequest :  "Item,  it  is  my  will  that  all  the  remainder  of  my  move- 
able  estate  shall  be  equally  divided :  that  is  to  say,  Henry  Coun- 
ter, and  the  heirs  of  my  son  Peter  Counter,  Anna  Roome,  Su- 
sannah Berry,  Elizabeth  Dodd  and  Sarah  Counter." 

And  the  question  is,  whether  the  children  of  Peter,  under  this 
bequest,  shall  take  per  stirpes  or  per  capita  f  or,  in  other  words, 
whether  the  whole  ten  shall  take  their  father's  share  only,  being 
the  one  equal  sixth  part?  or,  whether  each  of  them  shall  take  an 
equal  share  with  Henry  and  his  sisters?  In  the  one  case,  the 
plaintiff  would  be  entitled  to  the  one-fifteenth  part  of  this  re- 
mainder, and  in  the  other  to  the  one-sixtieth  part  only.  And  if 
we  were  not  a  little  perplexed  with  the  cases  in  the  books,  I 
think  we  should  have  no  difficulty  in  deciding  this  question. 

The  caSe  of  Bladder  v.  Webb  et  al.  (2  PerWil.  383)  is  that  up- 
on which  the  plaintiff  principally  relies  for  a  distribution  per  cap- 
ita. That  case,  however,  differs  from  this  in  its  circumstances,  and 
in  the  words  of  the  bequest.  There  the  testator  bequeaths  the 
surplus  of  his  personal  estate  "  equally  to  his  son  James,  and  to  his 
son  Peter's  children,  to  his  daughter  Traverse's,  and  to  his 
daughter  Webb's  children,  and  his  daughter  Man."  And  the 
Lord  Chancellor,  after  much  doubt,  determined  that  the  divi- 
sion should  beper  capita,  and  that  each  of  the  children  of  the 
testator's  son  Peter,  and  of  his  daughter  Webb,  should  take  an. 

VOL.  i.  H 


114  NEW  JERSEY  SUPREME  COURT. 

Roome  v.  Counter. 

equal  share  with  his  son  James  and  his  daughters  Traverse  and 
Man.  The  reason  given  is,  that  the  grandchildren  could  not  take 
under  the  statute  of  distributions,  or  in  allusion  thereto,  because 
the  testator's  daughter  Webb  was  still  living,  and  so  her  children 
could  not  represent  her. 

The  very  ground  upon  which  this  case  was  determined,  there- 
fore does  not  exist  in  the  one  before  us,  for  here  Peter  was  dead 
before  the  making  of  the  will ;  and  besides,  the  bequest  is  not  to 
the  children  of  Peter,  but  to  his  heirs,  a  term  which  always  car- 
ries with  it  the  idea  of  representation,  which  the  term  children 
does  not  do. 

In  the  case  of  Phillips  v.  Garth,  (3  Brown  Ch.  Rep.  64) 
Buller,  justice,  sitting  ibr  the  Lord  Chancellor,  seems  to  recog- 
nize this  case  of  'Bladder  v.  Webb  et  al.  as  good  law,  and  to 
found  his  opinion  principally  upon  it,  and  he  decrees  accordingly. 
But  there  was  an  appeal  to  the  Lord  Chancellor,  and  finding, 
upon  the  argument,  that  he  leaned  much  the  other  way,  the  cause 
was  compromised  by  the  parties,  with  the  advice,  no  doubt,  of 
the  able  counsel  who  advocated  the  cause. 

The  truth  is,  that  this  decision  in  the  case  of  Blackler  v.  Webb 
et  al.  though  made  by  no  less  a  man  than  Lord  Chancellor  King, 
is  in  itself  a  very  extraordinary  decision,  and  such  a  one  as,  I 
think,  would  hardly  be  made  by  any  court  at  this  day.  It  is 
somewhat  shaken  by  the  case  of  Phillips  v.  Garth,  above  cited ; 
and,  to  make  the  most  of  it,  it  can  give  the  rule  only  in  cases 
exactly  like  itself;  and  of  these,  the  one  before  us,  as  has  been 
shewn,  is  not  one. 

When  we  get  ourselves  completely  disentangled  from  this 
case ;  and  when  we  consider  that  the  testator  had,  in  his  lifetime, 
given  to  each  of  his  sons  a  plantation  for  his  use  and  occupation  ; 
that  by  this  will  he  devised  to  his  son  Henry  the  one  which  he 
had  given  to  him,  and  to  two  of  the  sons  of  his  son  Peter,  the 
one  which  he  had  given  to  him,  and  made  other  equivalent  pro- 
vision for  his  daughters,  and  then  directs  that  the  remainder  of 
his  moveablo  estate  shall  be  equally  divided  between  his  son  Hen- 
ry and  the  heirs  of  his  son  Peter,  and  his  surviving  daughters. 
When  wo  consider  the  plain  simple  meaning  of  the  words  of  this 
.bequest,  in  the  order  in  which  they  stand,  and  the  manifest  in- 
tention of  the  testator,  to  be  deduced,  as  well  from  the  circum- 
stances of  the  case  as  from  the  words  themselves,  I  think  we  can- 


FEBRUARY  TERM,  1822.  115 

Inhabitants  of  Saddle  River  v.  Colfax. 

not  hesitate  to  say,  that  the  children  of  Peter  are  to  take  per 
stirpes,  as  the  representatives  of  their  father,  and  not  per  capita ; 
and,  of  course,  that  this  plaintiff,  being  one  of  those  children,  is 
entitled  to  one-tenth  part  of  one-sixth  part  of  the  said  remainder 
only,  and  not  to  one-fifteenth  of  the  same. 
This  judgment,  therefore,  must  be  reversed. 

ROSSELL  J.  concurred. 

His  honour  Justice  FORD  having  been  the  presiding  judge  of 
the  Common  Pleas,  when  the  judgment  below  was  rendered, 
gave  no  opinion. 

CITED  is  Smith  v.  Curtis,  5  Dutch.  351.     Fisher  v.  Skillmam's  Exrs.,  3  C.  E.  Gr. 
235.     Stokes  v.  Tilly,  1  Stock.  135. 


THE  INHABITANTS  OF  THE  TOWNSHIP  OF  SADDLE  RIVER,  in  the 
county  of  Bergen,  against  WILLIAM  COLFAX. 

OK  CERTIORARI. 

1.  For  a  contract  made  by  the  overseers  of  the  poor  for  the  maintenance  of 
a  pauper,  the  inhabitants  of  the  township  are  liable  in  their  corporate  capacity, 
and  not  the  overseers. 

2.  Although  the  demand  of  the  plaintiff,  if  interest  be  calculated  at  eeven 
per  cent,  would  exceed  $100,  yet  it  he  demands  no  more  interest,  than,  with  the 
principal,  amounts  to  $100,  the  justice  may  try  the  cause. 

This  case  fully  appears  in  the  opinion  delivered  by  his  honour 
Justice  Ford. 

Dickerson,  attorney  for  plaintiff.     Jlornblower,  for  defendant. 

FORD  J.  At  the  annual  corporate  meeting  of  the  inhabitants 
of  the  township,  on  the  llth  of  April,  1814,  the  overseers  of  the 
poor  held  their  public  auction  for  selling  the  maintenance  of  their 
poor,  to  the  lowest  bidders,  for  one  year;  at  which  auction  they 
struck  off  the  maintenance  of  Nelly  and  Betsey  Carrol,  two  in- 
fant paupers,  of  their  town,  to  William  Colfax,  for  one  year,  at 
$104.  William  Colfax  accordingly  received,  and  maintained 
them  for  one  year.  Some  time  after  making  this  contract,  name- 
ly, on  the  16th  of  May  following,  the  town  committee,  doubting 
the  obligation  of  the  township  to  maintain  these  paupers,  gave  an 
order  to  the  overseers  to  pay  for  their  support  up  to  that  date, 
and  no  longer.  Accordingly,  on  the  19th  of  December,  1815, 
which  was  eight  months  after  the  expiration  of  the  year,  they 
paid  him  $10,  and  no  more.  The  residue  lay  unsettled  until  the 
year  1820,  when  he  sued  the  inhabitants  of  the  township,  and 


116  NEW  JERSEY  SUPREME  COURT. 

Inhabitants  of  Saddle  River  v.  Colfax. 

declared  there  remained  due  to  him,  for  principal  and  interest, 
the  sum  of  $100.  The  jury  found  a  verdict  in  his  favour  for  $94. 
And  now  three  errors  are  assigned  by  the  township;  first,  that 
the  demand  really  exceeded  the  jurisdiction  of  the  court  below; 
second,  that  the  plaintiff  was  not  entitled  to  pay  for  the  year's 
support ;  and  third,  that  the  action  in  this  case  cannot  lie  against 
the  township. 

1.  The  amount  due  to  the  plaintiff  will  certainly  exceed  $100, 
if  interest  be  calculated  at  seven  per  cent.;  but  the  law  mentions 
this  rate  only  to  prohibit  men  from  taking  more.     In  Pen.  908, 
this  court  decided,  that  a  creditor  might  take  less  if  he  pleased, 
and  this  creditor  Pays  he  asks  no  more  interest  than,  with  the 
principal,  amounts  to  $100. 

2.  The  contract  which  bound  the  purchaser  for  a  year's  main- 
tenance, bound  the  other  party,  necessarily,  for  the  same  time. 
It  was  a  mutual  tie,  and  could  not  be  rescinded  without  mutual 
consent.    No  idea  is  more  unjust  or  dangerous,  than  that  cor- 
porations, after  they  have  contracted,  may  rescind  or  alter  the 
contract  at  their  pleasure.    It  is  a  sacred  thing,  and  cannot  be 
impaired,  even  in  courts  of  law,  after  it  has  been  fairly  and 
legally  made. 

3.  I  am  of  opinion,  that  this  action  lies  against  the  inhabitants 
of  the  township,  and  no  other  persons.     The  act  of  21st  Febru- 
ary 1798,  constitutes  the  inhabitants  of  each  township  a  corporate 
body,  with  powers  to  sue  and  be  sued,  contract  and  be  contracted 
with,  and  this  is  most  evidently  a  corporation  contract. 

First.  Because  no  other  persons  are  liable  for  the  support  and 
maintenance  of  the  poor,  either  at  common  law  or  by  statute. 
The  common  law  made  no  provision  for  the  poor,  but  left  them 
to  depend  on  ecclesiastical  charity,  on  offerings  spontaneously 
made  at  altars,  and  on  the  voluntary  endowment  of  almshouses 
by  religious  and  pious  people.  The  principle  of  forcing  one  man 
to  support  others,  not  his  kindred,  was  wholly  unknown  to  it. 
Nothing  can  bo  more  remote  from  all  its  precedents  than  the 
forcing  of  two  overseers,  merely  because  they  are  public  officers, 
to  maintain  all  the  poor  of  a  township,  or  be  sued,  as  individuals, 
for  the  amount  of  the  maintenance.  Neither  docs  the  statute  law 
of  England,  with  all  its  mightiest  oppressions,  contain  such  a 
doctrine.  In  2  Shaw's  Jus.  19,  20,  it  is  laid  down,  "that  over- 
seers of  the  poor  are  not  obliged  to  disburse  their  own  money  for 


FEBRUARY  TERM,  1822.  117 

Inhabitants  of  Saddle  River  v.  Colfax. 

the  support  of  the  poor,  nor  are  they  obliged  to  lay  out  money 
till  they  have  received  it"  all  which  is  fully  supported  in  2  Ld. 
Ray.  1009.  And  it  is  in  vain  we  search  the  Jersey  statutes  for  a, 
law  to  subject  overseers  to  an  action  for  not  advancing  their  own 
money.  Many  overseers  are  not  worth  so  much  in  the  world. 
Such  a  law  would  spread  dismay  through  all  the  townships  in 
the  state,  and  could  not  exist  a  year  in  our  code.  Nor  is  there  the 
least  occasion  for  such  a  law,  because, 

Secondly.  The  support  and  maintenance  of  the  poor  is  charged 
by  law  upon  the  town  corporate.  By  the  eleventh  section  of  the 
act,  they  are  expressly  "  to  raise  money  for  the  support  and  main- 
tenance of  the  poor"  and  if  money  is  to  be  raised  by  judgment 
and  execution  against  the  overseers'  private  estates  for  the  same 
object,  it  must  be  because  the  corporation  will  not  do  it,  and  then 
the  overseers  are  ruined;  or  if  they  will,  then  the  money  is  to  be 
raised  twice  over.  And  to  give  a  remedy  against  the  overseers  in 
their  private  capacity  is  circuitous  and  altogether  unnecessary,  for, 

Thirdly.  A  corporation  is  always  bound  by  the  contracts  of  its 
officers,  provided  they  act  within  the  line  of  their  duty  to  the  cor- 
poration, and  by  lawful  authority.  A  corporation  can  act  no  other- 
wise than  by  its  officers;  and  hence,  by  the  twelfth  section  of  the 
act,  the  inhabitants  are  to  elect  officers  to  perform  all  their  cor- 
porate functions,  assessors  to  make  the  rates,  collectors  to  levy 
them,  overseers  of  the  poor  to  place  paupers  out  for  maintenance, 
and  a  town  committee  to  call  all  of  them  to  account ;  and  to  sup- 
pose that  these  officers,  acting  officially  and  within  the  limits  as- 
signed them  in  law,  do  not  bind  the  corporation,  would  be  to  pro- 
duce the  very  essence  of  confusion  ;  the  assessment  would  be  no 
corporate  rate ;  payment  of  rates  to  the  collector  would  not  be 
valid  against  the  township;  the  corporation  might  avoid  all  set- 
tlements made  by  the  township  committee,  under  pretence  they 
were  the  doings  of  private  men,  and  the  overseers  of  the  poor  be 
left  to  judgment  and  execution  upon  contracts  for  support  of  the 
poor,  though  made  by  them  officially,  in  their  very  names  of  over- 
seers of  the  poor;  and  this  in  opposition,  not  only  to  the  whole 
scope  and  intent  of  the  act  of  1798,  but, 

Fourthly.  In  opposition  to  the  former  decisions  of  this  court, 
and  what  I  consider  the  firmly  settled  principles  of  the  com- 
mon law,  I  deem  it  useless  to  inquire  into  the  liability  of  over- 
seers prior  to  the  incorporation  of  townships  in  1798,  for  at  that 


118  JsTEW  JEESEY  SUPEEME  COUET. 

4 

Inhabitants  of  Saddle  River  v.  Colfax. 

time  the  statute  did  away  old  things,  and  brought  the  overseers 
into  a  new  relation  by  making  them  the  subordinate  officers  of  a 
corporation.  Hence  this  court  decided  in  1  Pen.  13.6,  that  if 
they  pay  out  money  by  mistake  they  cannot  recover  it  back  in 
their  names,  because  it  is  corporation  mone}r,  and  must  be  sued 
for  in  the  name  of  the  corporate  body.  And  in  1  Pen.  6,  this 
court  rejected  the  idea,  that  overseers  were  answerable  as  prin- 
cipals, declaring  that  they  were,  in  fact,  only  the  agents  of  the 
township.  These  decisions  have  been  universally  understood  as 
settling  the  question  against  the  private  liability  of  overseers  of 
the  poor.  They  are  to  be  considered  as  agents  in  what  they  do 
officially,  and  no  principle  of  the  common  law  is  more  firmly 
settled,  than  that  the  act  of  the  agent  is,  in  law,  the  act  of  the 
principal.  "  Qui  facit  per  alium  facit  per  se,"  has  been  a  maxim 
for  ages.  And  it  is  as  applicable  to  public  agents  as  it  is  to  pri- 
vate ones.  In  1  Term  Hep.  182,  it  was  decided  that  where  a 
man  acts  as  public  agent,  and  treats  in  that  capacity,  there  is  no 
pretence  to  say,  that  he  is  personally  liable.  And  the  Supreme 
Court  of  the  United  States,  in  1  Cranch  345,  declares  that  this 
decision  is  consonant  to  policy,  to  reason  and  to  law,  and  repeats 
again,  "  that  when  a  public  agent  acts  in  the  line  of  his  duty,  and 
by  legal  authority,  his  contracts  are  public  and  not  private" 
Here  the  overseers  were  agents  in  no  private  business  of  their  own ; 
they  treated  in  the  capacity  of  overseers,  in  the  line  of  their  duty, 
and  by  lawful  authority.  So  it  became  the  contract  of  the  town, 
through  the  agency  of  their  legitimate  officers,  and  the  action  up- 
on the  contract  is  rightly  brought  against  the  inhabitants  of  the 
town.  Therefore,  in  my  opinion,  the  judgmentshould  be  affirmed. 

EOSSELL  J.  concurred. 

KIRKPATRICK  C.  J.  I  differ  from  my  brethren  in  the  opinion 
expressed  in  this  case.  My  view  of  the  question  is  shewn  in  the 
case  of  Board  and  Kanouse  v.  Cronk*  on  certiorari,  decided  this 
term.  I  should  therefore  incline  to  the  opinion,  that  the  judg- 
ment should  be  reversed. 

Judgment  affirmed. 

CITED  IH  Baplitt  Church,  Lower  Allowayi,  v.  Mulford,  3  Hal.  182.  Griffith  v. 
Clute.  4  Hal.  264.  Howtll  v.  Burnett,  Spen.  265.  Callahan  v.  Town 
of  Morris,  1  Vr.  160.  Inhab.  of  Princeton  v.  Mount,  5  Dutch.  301. 

*See  the  next  case. 


FEBRUARY  TERM,  1822.  119 


Board  v.  Cronk. 


JOSEPH  BOARD,  jun.  and  JACOB  KANOUSE,  overseers  of  the  poor  of  the 
township  of  Pompton,  in  the  county  of  Bergen,  against  SAMUEL  CRONK. 

OH   CEBTIOBAEI. 

An  action  will  not  lie  against  the  overseers  of  the  poor  for  the  maintenance 
of  paupers,  but  must  be  brought  against  the  inhabitants  of  township. 

This  case  involved  the  same  point  which  was  determined  in 
the  preceding  case  of  the  Inhabitants  of  Saddle  River  v.  Colfax, 
and  Justices  Rossell  and  Ford  having  determined  in  that  case, 
that  the  action  would  not  lie  against  the  overseers  of  the  poor, 
but  ought  to  be  brought  against  the  inhabitants  of  the  township, 
concurred  in  reversing  this  judgment. 

Hornblower,  for  plaintiff  in  certiorari. 

KIRKPATRICK  C.  J.  The  state  of  demand  filed  in  this  case  is 
to  the  following  effect,  viz. 

Joseph  Board,  jun.  and  Jacob  Kanouse,  overseers  of 
the  poor  of  the  township  of  Pompton, 

To  Samuel  Cronk,  Dr. 

To  keeping  two  persons  (naming  them)  chargeable  to 
the  township  of  Pompton,  from  June  23,  1818,  till 
April  12,  1819,  at  12s.  per  week  for  both,  -  -  $61  50 

Cr. 

For  sundries  (stating  them),       -  14.05 

47.45 
Interest  on  balance,  -,  1.88 


$49.33 

Upon  this  state  of  demand  there  is  a  verdict  and  judgment 
for  the  plaintiff  for  $48.57.5.  And  the  reason  assigned  for  the 
reversal  of  this  judgment  is,  that  Cronk's  right  of  action,  if  any 
he  had,  appears  by  the  state  of  demand  itself  to  be  against  the 
inhabitants  of  the  township  of  Pompton,  and  not  against  the 
overseers  of  the  poor.  But  I  am  inclined  to  think  this  reason 
cannot  prevail. 

It  is  admitted  by  the  counsel  for  the  plaintiffs  in  certiorari, 
that  in  England,  under  the  43d  of  Elizabeth  and  its  supplements, 
the  overseers  of  the  poor  are  answerable  upon  their  own 


120  NEW  JERSEY  SUPREME  COURT. 

Board  v.  Crook. 

contracts,  and  not  the  parishes ;  but  the  reason  of  this,  he  says, 
is,  that  the  parishes  there  are  not  incorporated,  as  our  townships 
here  are.  I  believe  I  may  venture  to  affirm,  however,  without 
the  danger  of  contradiction,  that  this  is  the  first  time  it  has 
ever  been  discovered  that  this  is  the  ground  of  the  construction 
of  the  43d  of  Elizabeth  in  this  respect.  Certain  it  is,  that  no 
case,  nor  even  dictum,  has  been  produced  from  the  books  which 
places  it  upon  any  such  foundation. 

I  do  not,  however,  lay  much  stress  upon  this,  because  that 
statute  is  widely  different  from  ours,  and  might  admit  of  different 
constructions.  So  far,  however,  as  it  is  analagous,  and  so  far  as 
it  has  been  the  foundation  of  our  practice  here,  the  construction 
of  it  is  against  the  position  assumed  by  the  plaintiffs. 

But,  what  is  still  more  material,  it  is  admitted  by  the  counsel 
for  the  plaintiffs,  that  from  the  first  establishment  of  our  poor 
laws  until  the  act  of  February  21, 1798,  incorporating  the  town- 
ships, the  law  was  the  same  here  as  in  England  in  this  respect; 
that  it  was  so  even  under  the  act  of  the  llth  of  March,  1774, 
which  is  the  act  still  in  force,  and  the  act  from  which,  alone,  our 
overseers  of  the  poor  derive  their  authority  at  this  day.  I  say 
it  is  admitted,  and,  indeed,  how  could  it  be  otherwise  upon  the 
principles  assumed,  for  until  that  time  the  townships,  not  being 
incorporated,  could  neither  be  bound  by  contract,  nor  sue,  nor 
be  sued  in  matter  of  debt.  The  overseers,  therefore,  were  neces- 
sarily responsible  themselves,  upon  their  own  contracts,  else 
their  contracts  must  have  been  nugatory  and  void,  a  position 
certainly  too  absurd  to  be  maintained  by  any  body. 

Well,  if  this  was  the  settled  construction  of  the  poor  laws,  and 
even  of  the  act  now  in  force,  and  if  this  was  the  uniform  prac- 
tice of  the  courts  upon  them,  by  what  authority  are  we  now  to 
introduce  a  new  system  ?  It  is  true,  that  the  townships  have  been 
incorporated,  but  the  act  by  which  they  are  incorporated  says  not 
one  single  sentence  upon  this  subject.  It  leaves  the  poor  laws 
and  the  powers  and  authorities,  as  well  as  the  duties  and  obliga- 
tions derived  from  them,  and  imposed  by  them,  just  where  they 
were  before.  It  is  said,  that  the  construction  now  contended  for 
would  be  much  more  convenient,  and  much  more  conducive  to 
the  public  good.  But  who  has  authorized  us  to  judge  of  this 
matter?  It  is  true,  that  in  construing  a  recent  statute,  ambigu- 
ously or  obscurely  drawn,  courts  will  go  a  great  way  to  give  it 


FEBRUARY  TERM,  1822.  121 

Board  v.  Cronk. 

that  construction  which  will  best  effect  the  manifest  intent  of  the 
legislature,  and  be  most  conducive  to  the  public  good  and  the  pub- 
lic convenience;  but  where  a  statute  has  already  received  its 
construction,  and  where  the  practice  under  it  has  been  uniform, 
for  fifty  years  and  more,  and  so  become  the  settled  law  of  the 
land,  it  would  be  going  a  great  way  for  a  court  to  give  it  a  new 
construction  under  the  pretence  of  making  it  better.  Now  the  act 
of  llth  of  March,  1774,  has  long  since  received  its  construction. 
It  has  been  admitted,  and,  indeed,  must  necessarily  have  been 
admitted,  that  by  that  construction  the  overseers  were  bound  by 
their  own  contracts,  and  not  the  townships,  for  the  townships 
could  not  be  bound ;  and  that  this  was  the  settled  law  of  the  land, 
at  least  up  till  February  21,  1798.  Has  this  construction,  then, 
been  altered  since  that  time?  Not  in  this  court,  I  am  bold  to 
affirm.  And  even  if  some  of  the  townships  should  be  found  to 
have  yielded  to  these  contracts,  which  I  very  much  doubt,  it  has, 
I  think,  been  matter  of  courtesy  rather  than  legal  obligation. 

In  the  case  of  Gould  and  Tompkins,  overseers,  &c.  v.  Bailey, 
(1  Pen.  6)  the  demand  was  for  medicine  furnished,  and  attend- 
ance given  by  Bailey,  the  plaintiff  below,  to  three  paupers  of 
the  township  of  Caldwell,  in  the  county  of  Essex,  by  the  direc- 
tion of  Tompkins,  as  one  of  the  overseers  of  the  poor  of  the 
said  township.  And  the  decision  was,  that  the  action  ought  to 
have  been  against  Tomkins  only,  on  his  individual  contract,  for 
that  the  contract  of  one  overseer  does  not  bind  the  rest ;  and, 
upon  this  principle,  the  judgment  below  was  reversed.  Not  a 
word  was  said  about  the  township  being  liable  upon  this  con- 
tract. The  book  from  New  York,  containing  this  doctrine,  had  not 
yet  been  made,  or,  if  made,  had  not  yet  been  brought  here  to  throw 
light  upon  our  laws. 

In  the  case  of  Shotwell  v.  Kelly,  Everet,  and  Thornell,  over- 
seers, &c.  (1  Pen.  76)  the  case  was  this:  Kelly,  one  of  the 
defendants,  had  laid  out  money  for  the  maintenance  of  a  negro 
man,  who  was  afterwards  discovered  to  belong  to  the  plaintiff, 
Shotwell,  and  thereupon  the  overseers  brought  this  action  to  re- 
cover the  money  so  laid  out,  as  money  expended  for  the  use  of 
Shotwell.  And  the  decision,  so  far  as  respects  this  case,  was, 
that  the  money  expended  was,  substantially,  the  money  of  the 
township  ;  that  if  it  was  lawfully  expended  by  the  overseers,  or 
any  one  of  them,  no  action  would  lie  against  them  by  the  town- 


122  NEW  JERSEY  SUPREME  COURT. 

Board  v.  Cronk. 

ship  to  recover  it  back  from  them,  and,  of  course,  they  could 
have  no  action  to  recover  it  of  Shotvvell;  but  that,  as  it  was  in 
fact  the  money  of  the  township,  and  as  it  had  been  expended  for 
the  benefit  of  Shotwell,  ex  equo  et  bono,  the  township  ought  to 
recover  it  back  from  him,  and  an  action  on  the  case  would  lie 
for  that  purpose ;  and  secondly,  that  if  recoverable  by  the  over- 
seers at  all,  it  must  be  by  Kelly  alone,  for  that  Everet  and  Thor- 
nell  had  no  participation  in  the  transaction.  It  is  true,  that,  in 
this  case,  some  things  were  said,  as  has  been  alleged  in  the 
argument  about  the  overseers  of  the  poor  not  being  a  corporate 
body;  but  what  has  that  to  do  with  the  question?  cannot  a  man 
be  bound  by  his  contract  without  being  a  corporate  body? 

The  truth  is,  there  is  nothing  in  either  of  those  cases  which  at 
all  countenances  the  doctrine  set  up  by  the  plaintiffs,  but,  on  the 
other  hand,  the  decisions,  so  far  as  respects  the  exclusive  liability 
of  the  township,  are  directly  against  them. 

But  without  inquiring  much  what  has  been  the  construction  of 
the  43d  of  Elizabeth  and  its  supplements,  or  of  our  own  poor 
laws,  as  to  this  matter,  and,  indeed,  without  seeming  to  think  it 
very  material  to  make  such  inquiry,  recourse  is  had  to  some  loose 
dicta  found  in  the  late  compilers,  on  the  subject  of  principal  and 
agent.  It  is  said,  the  overseer  is  the  agent  of  the  township,  and, 
that  when  the  agent,  in  his  contract,  makes  known  his  principal, 
the  principal  only  is  liable,  and  not  the  agent.  But,  even  if  this 
should  be  so,  yet,  I  apprehend,  it  is  a  misapplication  of  terms  to 
call  the  township  the  principal,  and  the  overseer  the  agent,  unless 
it  be  in  a  very  special  and  limited  sense.  For  what  is  an  agent? 
He  is  said  to  be  a  substitute,  a  deputy  appointed  by  a  principal, 
with  power  to  do  the  things  which  the  principal  himself  might 
and  could  lawfully  do.  And,  indeed,  it  is  obvious,  that  no  one 
can  constitute  an  agent,  and  empower  him  to  do  that  which  ho 
could  not  lawfully  do  himself.  Now  the  inhabitants  of  a  township 
have  no  lawful  authority  to  do  any  one  act  which  it  is  the  duty 
of  the  overseer  to  do.  They  cannot,  by  any  vote  or  decision  of 
theirs,  determine  who  shall  be  received  as  a  pauper,  and  who 
not;  who  shall  have  relief  and  who  not.  They  cannot  determine 
what  the  relief  shall  be;  how,  or  where,  or  at  what  expense,  or 
in  what  manner,  the  pauper  shall  be  maintained ;  (1  speak  of  the 
general  poor  laws)  they  can  raise  money,  it  is  true,  and  they  are 
bound  to  do  so,  but,  when  raised,  it  goes  into  the  hands  of  the 


FEBRUARY  TERM,  1822.  123 

Board  v.  Cronk. 

overseer,  they  cannot  touch  a  single  dollar  of  it,  or  direct  tho 
manner  in  which  it  shall  be  expended;  they  can  lawfully  make 
no  contracts  for  the  maintenance  of  the  poor,  and  much  less  can 
they  set  them  up  and  sell  them  to  the  lowest  bidder,  as  has 
sometimes  been  done  by  overseers,  in  the  very  face  of  all  the 
laws  of  decency  and  humanity ;  the  overseer  derives  no  power 
or  authority  from  the  township,  they  can  neither  direct  or  con- 
trol him  in  the  execution  of  his  duties,  these  are  prescribed  by 
a  higher  power,  they  are  prescribed  by  the  supreme  power  of 
the  state.  The  overseer,  therefore,  is  rather  to  be  considered  as 
the  officer  of  the  state,  than  as  the  agent  of  the  township.  It 
is  true,  that  he  is  elected  by  the  inhabitants  of  the  township,  at 
their  town  meetings,  but-  that  does  not  make  him  their  agent. 
It  is  only  the  mode  which  the  state  adopts  to  appoint  those  offi- 
cers, but  when  appointed,  the  township  has  no  more  control 
over  them  than  if  they  were  appointed  by  the  joint-meeting, 
like  other  officers  of  the  government.  '  Have  we  ever  heard  it 
said,  that  because  a  sheriff  is  appointed  by  the  inhabitants  of 
the  county,  that,  therefore,  he  is  the  agent  of  the  county,  and 
that  he  could  bind  them  by  his  contracts? 

But,  even  if  the  overseer  was  the  agent  of  the  township,  it 
does  not  follow  that  he  can  bind  them  by  his  contracts,  without 
special  authority  so  to  do.  The  township  raises  a  certain  sum  of 
money  to  maintain  the  poor,  which  by  law  is  paid  into  the  hands 
of  the  overseer  for  that  purpose,  does  it  follow,  that  he  can  bind 
them,  by  his  contracts,  to  any  amount  that  he  pleases?  This 
would  be  contrary,  I  think,  to  universal  experience,  and  the  com- 
mon understanding  of  men  upon  this  subject.  A  county  is  obliged 
to  repair  a  certain  bridge,  the  board  of  freeholders  appropriate 
and  raise  a  certain  sum  of  money  for  that  purpose,  and  appoint 
an  agent  to  conduct  the  work ;  can  that  agent  make  contracts 
to  bind  the  county  beyond  that  sum?  An  overseer  of  the  road, 
where  the  road  is  kept  in  repair  by  tax,  is  liable  to  be  fined  if 
the  road  be  ruinous,  and  even  if  the  township  be  fined  he  is  lia- 
ble to  return  to  them  the  money  exacted  from  them  by  the  fine, 
and  yet,  still,  he  can  only  spend  the  money  raised  by  the  tax,  and 
put  into  his  hands;  he  cannot  make  contracts  to  bind  the  town- 
ship according  to  his  discretion.  Indeed,  from  the  highest  officer 
in  the  government  to  the  lowest,  and  from  the  greatest  to  the 
smallest  concern  in  private  life,  the  rule  is  different  from  that 


124  NEW  JERSEY  SUPREME  COURT. 

Board  v.  Cronk. 

contended  for  here.  The  principal  appropriates  the  money  for 
the  object  in  view,  the  agent  expends  it,  but  my  mind  does  not 
present  me  a  single  instance  in  which  he  can  go  beyond  it. 

The  doctrine  of  principal  and  agent,  then,  does  not,  in  my 
view,  apply  lo  the  case  at  all,  and  even  if  it  did  it  would  not 
better  the  plaintiffs,  for  then  the  overseer  could  only  spend  the 
money  raised  and  put  into  his  hands. 

But  we  are  still  pressed  with  another  argument,  an  argument 
which  generally  brings  up  the  rear  of  a  desperate  cause.  It  is 
said,  the  townships  may  refuse  to  raise  money,  and  that,  by 
reason  thereof,  the  overseer  may  be  subjected  to  heavy  penalties, 
the  poor  may  be  left  to  starve,  the  lame  to  suffer,  and  the  sick 
to  die,  in  short,  that  the  whole  provision  of  the  government  may 
be  defeated.  The  answer  to  all  this  is,  that  the  law  will  never 
presume  that  the  township  will  refuse  to  do  its  duty,  but  tho 
contrary;  and,  by  way  of  strengthening  that  presumption,  we 
have  the  experience  of,  now,  an  hundred  years  or  more,  and  no 
such  disasters  have  ever  yet  happened,  that  we  have  heard  of. 

I  will  mention  one  thing  further.  If  there  be  an  appeal  under 
the  poor  laws,  it  is  in  tho  name  of  the  overseer,  and  not  of  the 
township ;  if  there  be  costs- or  expenses  adjudged,  it  is  against  tho 
overseer,  and  not  against  the  township;  and  if  there  bean  action 
to  recover  such  costs  and  expenses,  it  is  against  tho  overseer,  and 
not  against  the  township.  All  this  is  by  the  express  provisions  of 
the  act.  Where,  then,  is  the  sole  liability  of  the  township  in  these 
cases?  or,  is  the  township  solely  liable  only  where  it  suits  tho 
overseer  to  shift  himself  out  of  the  contract?  The  whole  money 
raised  for  the  maintenance  of  tho  poor  goes  into  the  hands  of 
the  overseer;  the  township  cannot  lawfully  have  a  single  penny 
at  its  disposal  for  this  purpose,  and,  generally  speaking,  it  has 
no  property  upon  which  a  levy  can  be  made.  Upon  the  whole, 
therefore,  in  my  opinion,  the  judgment  must  be  affirmed. 

Justices  ROSSELL  and  FOBD  contra.  And  so  the  judgment  was 
reversed. 


FEBKUAKY  TEEM,  1822.  125 

Stout  v.  Hopping. 

THOMAS  B.  STOUT  against  MOSES  HOPPING. 

OS  CERTIOHAEI. 

1.  An  action  on  the  case  lies  against  a  constable  for  not  returning  a  writ  of 
attachment. 

2.  Parol  evidence  of  a  person's  acting  as  constable  admissible. 

3.  The  absconding  debtor's  acknowledgment  of  the  sum  he  owed  the  plaintiff 
is  good  evidence  against  the  constable. 

4.  Judgment  not  reversed  because  the  justice  overruled  testimony  offered  by 
the  constable,  of  what  became  of  the  property  attached. 

5.  Judgment  not  reversed  because  the  verdict  is  entered  in  figures,  if  the  judg- 
ment thereon  is  entered  in  words  at  length. 

6.  Irregularity  in  entering  costs  may  be  corrected,  and  is  not  sufficient  ground 
of  reversal. 

The  opinion  of  the  court  was  delivered  by  Justice  Ford. 
Drake,  attorney  for  plaintiff  in  certiorari. 

FORD  J.  This  was  an  action  on  the  case  against  Thomas  B. 
Stout,  a  constable,  for  not  returning  a  writ  of  attachment  deliv- 
ered to  him  against  the  goods,  &c.  of  John  Ayers,  an  abscond- 
ing debtor,  and  the  jury  found  a  verdict  of  $23  for  the  plaintiff. 
The  first  reason  assigned  for  a  reversal  of  the  judgment  is,  that 
illegal  testimony  was  admitted  on  the  first  part  of  the  plaintiff, 
for  that  the  justice  allowed  parol  evidence  of  Stout's  being  a  con- 
stable. But  this  evidence  was  not  illegal,  because  proof  that  he 
acted  as  constable  is  always  admissible.  Cox  Rep.  286,  381. 
Again- — the  absconding  debtor's  acknowledgment  of  the  sum  he 
owed  the  plaintiff  was  allowed  to  be  proved  by  a  witness  who  heard 
the  acknowledgment  made ;  and  surely,  evidence  that  would  be 
good  against  the  debtor  himself,  touching  the  reality  and  amount 
of  the  debt,  must  be  good  against  an  officer,  who,  by  suppress- 
ing the  writ,  becomes  a  wrong-doer,  and  can  stand  in  no  better 
situation  than  the  debtor  himself.  Otherwise,  the  plaintiff  would 
be  deprived  of  evidence  wholly,  for  if  he  produced  a  bond  of  the 
debtor's  making,  the  constable  might  as  reasonably  say,  it  is  not 
my  bond,  and  cannot  be  evidence  against  me.  Even  a  judgment 
against  the  absconding  debtor  would  be  admissible  evidence  of 
the  debt  due,  although  the  officer  was  no  party  to  the  judgment. 
Cox  283,  Patten  v.  Halstead. 

The  second  reason  is,  that  the  defendant  offered  to  prove,  by 
a  witness,  what  had  become  of  the  property,  and  was  overruled. 
There  could  be  no  disposition  of  it  that  would  justify  a  suppres- 
sion of  the  writ,  and  if  it  was  offered  only  in  mitigation  of  dam- 


126  NEW  JERSEY  SUPREME  COURT. 

Harvey  v.  Trenchard. 

ages,  the  particular  disposition  should  have  been  opened  to  the 
justice,  that  he  might  judge  whether  it  was  legal  or  not,  for  if  they 
were  lost  through  the  carelessness,  neglect  or  improper  conduct 
of  the  constable,  he  could  not  take  advantage  of  his  own  wrong. 
We  cannot  say,  the  evidence  was  legal,  and  improperly  rejected, 
without  knowing  what  it  was,  and  all  presumptions  are  against 
an  officer  suppressing  the  process  of  the  court  in  his  hands. 

The  third  reason  is,  that  the  verdict  is  entered  in  figures,  and 
it  is  so;  but  then  the  judgment  thereon  is  entered  in  words  at 
length,  which  cures  that  irregularity  in  form. 

The  fourth  reason  is,  because  the  judgment  is  for  more  costs 
than  are  by  law  recoverable.  The  justice  writes  it  thus,  "and 
five  dollars  and  five  dollars  and  eighty-one  cents  cost,"  an  evi- 
dent repetition  of  three  words,  in  writing,  that  never  was  intended, 
as  appears  by  the  bill  of  costs  entered  in  the  margin  of  the 
record,  and  footed  up  correctly  at  $5.81.  The  entry  of  tbe  costs 
must  be  corrected,  according  to  the  statute,  (Revised  Laws  557) 
by  striking  out  the  repetition,  and  no  costs  be  taxed  in  favour 
of  the  defendant.  • 

Let  the  judgment  be  affirmed. 


WILLIAM  HARVEY  againit  JOHN  TRENCHARD. 

05  OEBTIORARI. 

A.  contracts  with  B.  in  writing,  to  convey  certain  land  to  him  the  next 
Wednesday,  when  B.  is  to  pay  A.  $295,  and  give  a  note  for  $25  more,  payable 
in  four  months.  In  an  action  by  B.  against  A.  for  not  making  a  deed  for  the 
laud  the  state  of  demand  must  aver,  that  the  f  295  were  tendered  by  B. 

The  opinion  of  the  court  was  delivered  by  Justice  Ford. 
Jeffers,  attorney  for  plaintiff. 

FORD  J.  The  defendant,  Harvey,  contracted,  in  writing,  un- 
der date  of  27th  November,  1817,  to  convey  certain  land  to  the 
plaintiff  "the  next  Wednesday,"  when  plaintiff  was  to  pay  him 
$295,  and  give  a  note  for  $25  more,  payable  in  four  months.  On 
this  contract  tbe  plaintiff  sued  Harvey,  and  declared  against  him 
in  case  for  not  making  a  deed,  averring  that  he,  the  plaintiff,  was 
ready  to  pay  the  $295  at  the  day,  and  to  give  the  note  for  $25. 
On  the  day  appointed  for  trial,  but  prior  to  its  boing  called  on, 
the  defendant  moved  the  justice  for  a  nonsuit,  because  the  state 


FEBRUARY  TERM,  1822.  127 

Todd  v.  Collins. 

of  demand  was  defective  in  not  stating,  that  the  3295  were  ten- 
dered by  the  plaintiff.  The  justice  overruled  the  motion,  and 
swore  the  jury,  who  found  a  verdict  of  030  for  the  plaintiff. 

Here  was  certainly  an  error.  The  conveyance  and  the  pay- 
ment for  it  were  to  be  done  at  the  same  time,  and  neither  party 
can  sue  without  averring  performance  or  tender  on  his  part.  1 
Saund.  320,  note  4.  Here  were  neither  payment  or  tender  of  the 
money;  the  plaintiff  pretends  to  neither,  he  only  says  he  was 
"ready  to  pay;"  but  was  Harvey  bound  in  law  to  trust  his 
word  instead  of  money  ?  It  should  have  been  produced  and 
tendered.  Harvey  had  a  right  not  only  to  see  the  money,  but 
to  see  it  was  good  money,  before  he  gave  up  his  land. 

In  a  higher  court,  if  the  defendant  had  not  demurred,  the 
verdict  might  have  cured  the  defect,  but  in  the  court  below  the 
demurrer  is  not  used.  The  defendant  stated  this  defect  before 
the  trial  came  on,  and  prayed  the  justice  to  dismiss  the  action 
on  account  of  it. 

Let  the  judgment  be  reversed. 

CITED  is  Ackley  v.  Richman,  5  Hal.    Shinn  v.  Roberts,  Spen.  435. 


WILLIAM  TODD  against  JOSEPH  COLLINS. 

ON   CERTIOEABI. 

1.  Landlord  not  liable  under  the  statute,  (Rev.  Laws  146,  sec.  1)  for  the  act 
of  his  tenant,  who  by  setting  fire  to  his  own  woods  consumes  woods  of  his 
neighbours. 

2.  Justice  bound  to  charge  the  jury  upon  a  point  of  law,  when  called  upon 
so  to  do. 

The  opinion  of  the  court  was  delivered  by  Justice  Ford. 

M'llvaine,  attoi-ney  for  plaintiff.     Woodruff,  for  defendant. 

FORD  J.  William  Todd  made  a  lease,  for  five  years,  to  one 
Joseph  Turner,  of  a  meadow,  and  an  adjoining  tract,  from  which 
the  wood  and  timber  had  been  taken  off,  and  Turner,  the  tenant, 
was  to  clear  up  this  tract,  during  his  lease,  as  a  compensation  for 
the  use  of  the  whole.  The  tenant  employed  one  Evans  to  work 
at  grubbing  and  burning  the  brush,  who,  through  want  of  suffi- 
cient care,  let  his  fire  spread  in  the  woods  adjoining,  where  it 
consumed  forty-eight  cords  of  Mr.  Collins'  cord-wood,  for  which 
injury  he  sued  William  Todd,  the  landlord,  on  the  statute,  {Rev. 
Laws  146,  sec.  1)  which  enacts,  "that  if  any  person  shall  wil- 
fully set  firo  to  his  own  woods,  or  to  woods  in  his  tenure  or  pos- 


128  NEW  JERSEY  SUPREME  COURT. 

Todd  v.  Collins. 

session,  whereby  any  other  person  shall  be  damnified  in  his  prop- 
erty, the  person  offending  shall  bo  punished  by  fine,  or  imprison- 
ment at  hard  labour,  and  shall  pay  double  damages  to  the  party 
injured."  It  was  contended,  that  the  landlord  was  not  liable  for 
the  act  of  his  tenant  by  the  words  or  meaning  of  this  statute,  and 
the  justice  was  requested  to  charge  the  jury  on  this  point,-  but  he 
declined.  The  jury  found  a  verdict  of  $90  for  the  plaintiff;  and 
now  two  reasons  are  assigned  for  a  reversal  of  the  judgment: 
first,  because  the  justice  refused  to  charge  the  jury ;  and  second, 
because  Todd,  the  landlord,  was  not  liable  under  the  statute. 

1.  An  important  question  arose,  whether  a  landlord  is  liable 
for  the  wilful  act  of  a  tenant  in  setting  fire  on  the  demised 
premises,  under  the  provisions  contained  in  the  statute  ?  and  the 
justice,  being  called  on,  gave  no  opinion,  one  way  or  the  other. 
"One  of  the  most  important  duties  of  the  court  is,  to  expound 
the  law  to  the  jury  for  their  instruction  and  guide,  and  this  duty 
must  in  no  way  be  evaded  when  the  case  requires  it."  1  South. 
362. 

It  is  manifest,  that  the  landlord  did  not  set  the  fire ;  it  was 
done  by  Evans,  under  the  procurement  of  Turner,  the  tenant ; 
and  whether  Turner  would  be  answerable,  by  imprisonment  and 
double  damages,  for  the  carelessness  of  Evans,  is  not  now  to  be 
considered,  and  much  less  to  be  decided.  But  suppose  it  to  be 
the  wilful  act  of  Turner,  the  tenant,  how  does  this  inculpate 
Mr.  Todd?  was  not  Turner  the  owner  for  five  years?  He  had 
a  term  that  was  his  own,  a  will  not  subject  to  Todd's  restraint, 
or  amenable  to  bis  orders ;  he  employed  whomsoever  he  pleased, 
and  was  his  own  judge  of  fitness  of  weather  for  the  business: 
hence  it  was  neither  the  act,  and  much  less  the  wilful  act,  of 
Mr.  Todd,  in  any  reasonable  sense  whatever.  Beside  all  this, 
the  act  was  drawn  so  as  purposely  to  distinguish  between  land- 
lord and  tenant,  and  to  include  the  latter,  for  it  speaks  of  his 
woods,  and  likewise  of  woods  in  his  tenure.  It  is  the  man  who 
has  woods  in  his  tenure,  and  sets  fire  to  them,  that  is  made 
expressly  liable,  and  the  verdict  is  founded  on  an  evident  mis- 
construction of  the  statute. 

Let  the  judgment  be  reversed. 

CITZD  nr  Daviton  v.  Schooley,  5  Hal.  173.     Linn  v.  Rot*,  1  Ham.  67      Coh  v 
Taylor,  2  Zab.  60. 


FEBRUARY  TERM,  1822.  129 

Van  Dyk  v.  Dodd. 

JAMES  VAN  DYK  against  ABRAHAM  DODD. 

OF   CERTIOEAEI. 

A  state  of  demand  in  trespass  for  breaking  plaintiff's  close  and  cutting  and 
taking  away  his  grain,  grass,  wood,  hay,  &c.  without  alleging  the  quantity  and 
value  of  each  article,  is  sufficient. 

The  opinion  of  the  court  was  delivered  by  Justice  Ford. 

W.  Halstead,  attorney  for  defendant.     Kearney,  for  plaintiff. 

FORD  J.  This  was  an  action  of  trespass  against  James  Van 
Dyk  for  breaking  and  entering  the  plaintiff's  close,  and  cutting- 
down  and  carrying  away  his  grain,  grass,  wood,  hay,  corn,  &c. 
The  plaintiff  recovered  a  verdict  for  $60,  and  there  are  nine 
reasons  offered  for  setting  the  judgment  aside;  but  the  last  eight 
being  unsupported  by  the  record,  and  in  no  wise  verified,  the 
first  reason  is  the  only  one  to  be  considered;  and  this  is  " because 
the  declaration  is  wholly  informal,  and  wants  substance." 

Now  informality  has  been  settled  repeatedly  to  be  no  good 
reason  for  reversing  the  judgment,  provided  it  is  good  in  sub- 
stance. And  it  contains  the  following  charge:  "that  23d  of  July, 
1817,  the  defendant,  with  force  and  arms,  broke  and  entered  the 
plaintiff's  close  and  barn,  at  Bloomfield  in  the  county  of  Essex, 
and  the  grain,  grass,  wood,  hay,  corn,  boards,  apples,  and  gar- 
den vegetables  of  the  plaintiff  then  grown  and  growing,  did  cut 
down,  carry  off,  waste,  and  destroy,  to  the  plaintiff's  damage 
one  hundred  dollars."  Here  is  substance  enough.  Had  it  alleged 
the  quantity  and  value  of  each  article  it  would  have  been  more 
formal ;  but  the  uttermost  form  of  the  book  alleges  quantity  and 
value  under  a  videlecit,  and  then  they  are  not  to  be  proved  as 
laid,  but  are  left  open  to  any  evidence  that  the  plaintiff  may  be 
able  to  adduce  at  the  trial.  The  declaration  is  sufficient  in  sub- 
stance. 

Let  the  judgment  be  affirmed. 

CITED  ITS  Qould  v.  Brown,  4  Hal.  167.     Gregory  v.  Kanoute,  6  Hal.  69* 
VOL.  I.  I 


130  NEW  JERSEY  SUPREME  COURT. 

Stultfl  v.  Outcalt. 
WILLIAM  HANKINSON  agaimi  DAVID  BAIRD. 

IS   TEE8PAS3. 

If  an  action,  wherein  the  title  to  land  must  come  in  question,  be  commenced 
in  the  Common  Pleas  and  be  removed  by  the  defendant  into  the  Supreme 
Court,  the  plaintiff  shall  recover  full  costs,  although  the  judgment  in  his 
favour  should  be  less  than  $200. 

The  opinion  of  the  court  was  delivered  by  Justice  Ford. 

FORD  J.  The  defendant  having  set  fire  on  his  land,  which 
spread  to  the  land  of  the  plaintiff,  and  injured  and  destroyed  his 
timber,  the  latter,  who  was  tenant  by  curte83T,  brought  an  action 
of  trespass,  quare  dausum  fregit,  in  the  Common  Pleas.  The 
defendant  removed  the  .suit  into  this  court,  where  the  plaintiff 
recovered  judgment  for  835,  and  now  moves  for  allowance  of 
full  costs. 

This  action  could  not  be  maintained  in  the  court  for  trial  of 
Bmall  causes,  because  the  injury  is  not  to  personal  property  lying 
on  the  land,  or  to  the  mere  possession,  but  a  permanent  injury 
to,  and  destruction  of,  the  freehold,  and  the  title  not  only  may, 
but  must,  be  shewn  to  enable  the  plaintiff  to  recover,  (1  South. 
113;  2  South.  507)  and,  therefore,  the  action  was  properly  com- 
menced in  the  Common  Pleas,  and  had  it  continued  there  this 
verdict  would  have  entitled  the  plaintiff  to  full  costs.  But  if  the 
duit  is  removed  by  the  defendant  into  this  court,  full  costs  are 
allowed  by  the  statute,  although  the  judgment  should  not  exceed 
8200.  Eev.  Laws,  309,  sec.  1. 

Allow  full  costs. 

CITED  n  Gregory  v.  Kanouse,  6  Hal.  69. 


JACOB  STULTS,  MARY  OBART,  and  JOHN  STULTS  againtt  JOHN  F. 

OUTCALT. 

01T   CEBTIOUAEI. 

In  an  action  against  three,  the  return  of  the  summons  must  shew  on  whom 
it  was  served,  ana  on  whom  not ;  and  such  return  cannot  be  dispensed  with, 
unless  all  the  defendants  appear. 

The  opinion  of  the  court  was  delivered  by  Justice  Ford. 
Boggs,  attorney  for  plaintiff  in  certiorari. 

FORD  J.  A  summons  issued  in  this  case  against  all  three  of 
the  defendants  upon  contract,  and  was  returned  by  the  constable 
"duly  served,"  without  certifying  on  whom  he  served  it,  or  on 


FEBEUARY  TERM,  1822.  131 

Lambert  v.  Moore. 

whom  he  did  not,  although  the  statute  is  positive  on  him  to  endorse 
the  time  and  manner  of  service.  Jacob  Stults  was  the  only  one 
who  appeared  on  the  return  day  of  the  summons,  and  he  pleaded 
for  himself  alone,  and  the  other  two  being  proceeded  against  in 
their  absence,  and  no  return  by  the  constable  under  his  oath  of 
office,  that  they  could  not  be  found.  This  court  has  uniformly 
and  repeatedly  decided,  that  such  return  cannot  be  dispensed 
with,  unless  all  the  parties  appear.  1  Pen.  155,  Shinn  v.  Earnest. 
1  South  108,  Studdiford  v.  Ferris.  Therefore, 
Let  the  judgment  be  reversed. 


GERSHOM  W.  LAMBERT  and  CHARLES  JONES  against  GEO.  MOORE. 

IN  DEBT. 

A  defendant  having  beea  held  to  bail,  and  a  judgment  rendered  against  him 
in  another  state,  cannot  be  held  to  bail  in  this  state  in  an  action  on  that  judg- 
ment. 

This  was  a  motion  to  discharge  the  defendant  on  common 
bail.     T«he  opinion  of  the  court  was  delivered  by  Justice  Ford. 
Ewing,  attorney  for  plaintiff.     Wall,  for  defendant. 

FORD  J.  The  plaintiffs  arrested  the  defendant,  and  held  him  to 
bail,  in  Pennsylvania.  After  judgment  was  rendered  against  him 
in  that  state,  the  bail  became  insolvent.  The  defendant  is  now 
arrested  in  this  state,  in  an  action  brought  upon  that  judgment, 
and  he  moves  to  be  discharged  on  common  bail.  It  is  a  clearly 
settled  rule,  that  bail  shall  not  be  required  to  an  action  of  debt 
on  a.  judgment,  if  the  defendant  gave  bail  to  the  former  suit.  And 
even  if  the  bail  have  become  insolvent,  it  has  never  been  held  a 
sufficient  reason  to  make  an  exception  to  the  rule.  Such  is  the 
law  that  governs  this  subject  where  the  judgment  is  rendered  in 
this  state,  between  our  own  citizens.  We  give  full  faith  and 
credit  to  this  record  from  Pennsylvania,  and  allow  it  to  have  all 
the  validity  of  a  record  in  our  own  state;  but  there  is  no  reason 
for  allowing  it  greater  efficacy,  or  extending  broader  privileges  to 
the  plaintiff,  or  laying  heavier  obligations  on  the  defendant,  than 
the  rules  of  law  provide  for  our  own  citizens.  Indeed,  the  rule 
is  the  same.  See  Tidtfs  Pmc.  186.  Say's  Rep.  160.  7  Term  Hep. 
407,  470.  14  John.  346. 

Let  the  defendant  be  discharged  on  common  bail. 


NEW  JERSEY  SUPREME  COURT. 


Westcott  v.  Danzenbaker. 


8HEPPARD  WESTCOTT  against  POWELL  GARRISON  and  JACOB 
DANZENBAKER. 

05  CERTIORARI. 

1.  Under  the  18th  section  of  the  statute  of  29th  of  November,  1788,  (Pat. 
M)  relative  to  bank  meadows,  if  the  bank  get  out  of  repair,  BO  that  immediate 
repairs  are  necessary,  and  the  person  to  whom  that  part  of  the  bank  has  been 
assigned ,  neglects  to  repair  it,  it  any  of  the  owners  enter  and  make  repair  they 
nay  maintain  an  action  against  the  person  whose  duty  it  was  to  repair. 

2.  Sufficiency  of  state  of  demand  to  recover  under  this  section. 

3.  All  intendments  are  to  be  taken  in  favour,  and  not  against  a  record.     It 
is  not  enough  to  be  in  doubt,  the  error  must  be  manifest,  in  order  to  reverse  a 
judgment. 

4.  Not  error  to  refuse  to  charge  a  jury  when  there  is  no  question  of  law  in 
dispute,  or  any  point  on  which  the  charge  is  requested. 

The  opinion  of  the  court  was  delivered  by  Justice  Ford. 
L.  Q.  C.  Elmer,  attorney  for  plaintiff. 

FORD  J.  The  first  reason  assigned  for  reversing  this  judgment 
is,  that  the  state  of  demand  does  not  contain  a  lawful  cause  of 
action.  The  plaintiffs  and  defendant  were  three,  among  many 
owners  of  a  tract  of  bank  meadow,  inclosed  pursuant  to  the 
statute  of  29th  November,  1788.  Pat.  84.  By  agreement  among 
all  the  owners,  a  certain  part  of  the  bank  had  been  assigned  to 
each  one  to  be  kept  in  repair.  To  the  defendant,  Westcott,  were 
Allotted,  definitely,  79  rods  in  length  for  his  part,  and  ten  rods 
thereof  being  suffered  to  get  out  of  repair,  so  that  the  tide  water 
flowed  over  the  meadows  and  rendered  immediate  repairs  neces- 
sary, and  the  defendant  neglecting  to  do  them,  the  plaintiffs, 
being  two  of  said  owners,  entered  and  made  the  necessary  repairs, 
under  the  18th  section  of  the  said  statute,  (Pat.  87)  which  gives 
them  an  action  to  recover  the  expense  of  such  repairs  against 
the  person  whose  duty  it  was  to  make  them.  Such  is,  in  sub- 
stance, the  state  of  demand,  and,  I  think,  it  amounts  to  a  lawful 
cause  of  action. 

The  second  reason  is,  that  the  justice  admitted  illegal  evi- 
dence. The  record  states,  "that  the  plaintiffs  offered  to  prove 
by  Michael  Swing,  that  the  owners  of  the  meadow  all  agreed, 
that  witness,  Matthias  Burch,  and  Daniel  Parvin,  jun.,  should 
assign  and  set  off  to  each  owner  his  share  of  the  bank  to  keep 
up  and  maintain,  and  that  the  said  persons  procteded  to  set  off 
a  certain  part  of  said  bank  to  the  defendant;  to  which  evidence 
the  defendant  objected,  but  the  objection  I  overruled."  Now  the 


FEBRUAEY  TEEM,  1822.  133 

Perrine  v.  Perrine. 

agreement  of  the  owners  for  having  a  certain  part  set  off  to  each 
of  them,  must,  where  there  is  no  proof  or  intimation  on  the  con 
trary,  be  considered  a  parol  agreement,  and,  therefore,  compe- 
tent and  proper  to  be  proved  by  the  parol  evidence  of  a  witness. 
The  only  difficulty  lies  in  the  precise  meaning  of  the  following 
words :  "  that  the  said  persons  proceeded  to  set  off  a  certain  part 
of  said  bank  to  the  defendant."  I  understand  Michael  Swing  to 
have  testified  to  no  more  than,  that  he  and  the  other  two  per- 
sons took  on  themselves  the  burthen  or  duty  of  marking  out  each 
one's  share.  The  plaintiffs  do  not  seem  to  have  relied  on  him 
for  proving  how  much  was  allotted  to  the  defendant,  or  in  what 
part  it  lay.  For  proof  of  these  matters,  the  plaintiffs  refer  them- 
selves in  their  state  of  demand,  "to  the  award  in  writing,  under 
the  hands  of  these  three  persons,  dated  the  20th  of  November, 
1817,"  almost  in  the  manner  of  a  profert ;  and  I  am  not  satisfied 
that  the  record  means  to  say,  that  Michael  Swing  gave  evidence 
by  parol,  of  the  contents  of' the  award.  What  he  did  say  or  do  is 
not  put  down,  but  only  what  he  undertook,  or  proceeded  to  do. 
All  intendments  are  to  be  taken  in  favour,  and  not  against  the 
record.  It  is  not  enough  to  be  in  doubt,  the  error  must  be  a 
manifest  6ne  in  order  to  reverse  a  judgment. 

The  third  reason  is,  that  the  justice  refused  to  charge  the  jury, 
although  requested  to  do  so  by  the  defendant.  But  there  does 
not  appear  to  have  been  any  question  of  law  in  dispute,  nor  any 
point  on  which  his  charge  was  requested.  It  cannot  be  an  error 
not  to  charge  the  j  ury  when  there  is  nothing  to  charge  them  about. 

Let  the  judgment  be  affirmed. 


HANNAH   PEERINE   against   ENOCH   PERRINE  and  DANIEL   DEY, 
executors  of  Peter  Perrine,  deceased. 

IN  EEEOB. 

1.  A  legacy  given  to  a  wife  in  lieu  of  dower,  the  wife  having  no  title  or  in- 
choate right  to  dower  at  the  time  of  making  the  will,  or  afterwards,  will  abate 
in  proportion  to  other  legacies. 

2.  The  fact  of  the  widow's  having  no  title  or  right  inchoate  at  the  time  of 
making  the  will,  or  afterwards,  may  be  made  out  by  evidence  dehors  the  will. 

This  was  an  action  on  the  case,  brought  in  the  Common 
Plena  of  the  county  of  Middlesex,  by  Hannah  Perrine,  (the  widow 
of  Peter  Perrine,  deceased)  against  his  executors,  to  recover  a 


134  NEW  JERSEY  SUPEEME  COURT. 

Perrine  v.  Perrine. 

legacy  bequeathed  to  her  by  the  will  of  said  Peter  Perrine, 
deceased,  which  bequest  was  in  the  following  words:  "I  give 
and  bequeath  unto  my  well  beloved  wife,  Hannah  Perrine,  all 
the  articles,  goods  and  furniture  that  I  received  with  her  after 
our  marriage,  likewise,  the  sum  of  three  hundred  dollars  ;  the  said 
goods  and  furniture  to  be  delivered  unto  her  immediately  after 
my  decease ;  and  the  said  sum  of  money  to  be  paid  unto  her 
•within  three  months  after  my  decease  ;  all  the  above  mentioned 
property,  and  the  said  sum  of  money  I  give  and  bequeath  unto 
my  said  wife  Hannah,  provided  she  shall  accept  the  same  in  lieu 
of  her  right  of  dower."  The  other  parts  of  1?he  will  necessary  to 
be  inserted  here,  for  the  purpose  of  understanding  the  case,  were 
as  follows:  "Item,  I  give  and  bequeath  unto  my  son  Enoch,  his 
heirs,  and  assigns  for  ever,  all  the  lands  now  owned  by  mo,  to- 
gether with  all  the  residue  of  my  moveable  property  of  every 
description  not  before  bequeathed,  provided  he  shall  pay  the 
several  sums  of  money,  as  is  hereafter  directed."  Then  he  gives 
to  his  seven  daughters,  and  the  children  of  a  deceased  daughter, 
$50  each,  to  be  paid  within  one  year  after  his  decease,  and  directs 
that  his  son  Enoch  shall  pay  all  his  just  debts,  funeral  expenses, 
the  costs  of  executing  his  will,  and,  also,  all  the  several  sums  of 
money  I  have  given  and  bequeathed  unto  my  wife,  children,  and 
grandchildren,  as  is  above  directed." 

The  following  state  of  the  case  was  agreed  upon  by  the  parties 
and  their  attorneys,  and  submitted  to  the  Court  of  Common 
Pleas.  First.  That  Peter  Perrine,  deceased,  in  his  lifetime,  made 
and  executed,  in  due  form,  his  last  will  and  testament,  in  writing, 
bearing  date  the  twenty-first  day  of  April,  eighteen  hundred  and 
fourteen,  prout  the  same,  and  some  time  afterwards,  to  wit,  in 
the  month  of  September,  eighteen  hundred  and  seventeen,  de- 
parted this  life,  without  having  revoked  or  altered  the  same,  and 
being  at  the  time  of  making  said  will,  and  at  the  time  of  his  death, 
an  inhabitant  of  the  county  of  Middlesex;  that  the  defendants, 
the  executors,  proved  said  will,  and  took  upon  themselves  the 
execution  (prout  the  same);  that  within  three  months  after  the 
death  of  the  said  Peter  Porrine,  deceased,  the  defendants  de- 
livered to  the  plaintiff  all  the  articles,  goods,  and  furniture  that 
were  received  with  her  by  the  testator,  after  the  marriage  of 
the  said  testator  witb  her,  and  mentioned  in  the  said  last  will ; 
that  the  testator  did  not,  at  the  time  of  making  his  said  will, 


FEBRUARY  TERM,  1822.  135 

Perrine  v.  Perrine. 

or  at  any  time  afterwards,  own  or  possess  any  real  estate  of 
inheritance,  and  that  no  such  estate  descended  from  him  to  his 
heirs,  and  that  Enoch  Perrine,  his  son,  mentioned  in  said  will, 
has  not  received  any  estate,  real  or  personal,  under  the  devises 
and  bequest  to  him  in  said  will  contained;  that  the  testator  had, 
at  the  time  of  making  his  will,  the  following  daughters,  Margaret, 
Catharine,  Mary,  Elizabeth,  Rebecca,  Sarah,  and  Lydia,  and  the 
following  son,  Enoch;  that  Jane,  mentioned  in  the  said  will,  and 
Peter  and  Andrew,  who  were  also  his  children,  were  deceased 
at  the  time  of  making  said  will;  that  all  the  said  children,  as  well 
those  then  living  as  those  who  were  then  deceased,  he  had  by 
his  former  wife  Sarah  (Scantling  being  her  maiden  name) ;  that 
all  the  above  children,  (except  those  deceased  at  the  time  of 
making  said  will)  and  the  children  of  Jane,  mentioned  in  the  will, 
were  living  at  the  time  of  testator's  death,  and  still  are  living ; 
that  the  said  Sarah  Scantling,  at  the  time  of,  and  after,  her  inter- 
marriage with  the  testator,  owned,  in  fee  simple,  a  tract  of  land 
in  the  county  of  Middlesex,  which,  upon  her  death,  descended 
to  her  children,  and  in  which  the  testator,  after  her  death,  and  at 
the  time  of  his  intermarriage  with  the  present  plaintiff,  had  an 
estate  for  life,  as  tenant  by  the  curtesy,  and  the  testator,  at  the 
time  of  making  this  said  will,  believed  he  had  an  estate  in  fee 
simple  in  said  premises,  instead  of  a  tenancy  by  the  curtesy,  and 
intended  to  include  it  in  his  devise  to  Enoch  Perrine,  which  i» 
to  be  included  as  a  part  of  this  state  of  the  case,  if  the  court  think 
it  admissible,  and  can  legally  be  proved  by  evidence  dehors  the 
will;  that  the  defendants,  as  executors  of  said  testator,  exhibited 
to  the  county  of  Middlesex  their  accounts  of  the  personal  estate 
and  credits  of  said  testator,  and  of  their  disbursements  thereout, 

which  were  S ,  and  stated  by  the  surrogate,  and  reported  to 

the  Orphans'  Court  of  the  county  of  Middlesex,  by  him  for 
allowance  in  the  term  of  September,  eighteen  hundred  and  eigh- 
teen, which  in  the  same  term,  by  the  said  court,  on  due  proof  of 
their  having  been  legally  advertised,  were  all  allowed  and  con- 
firmed by  the  decree  of  said  court,  and,  upon  such  accounting,  a 
balance  was,  by  said  decree,  found  and  decreed  to  be  in  their 
hands,  after  the  disbursements  allowed  of  three  hundred  and 
thirty-eight  dollars  and  ninety-nine  cents ;  that,  in  addition  to 
said  balance,  a  small  sum,  not  contained  in  said  accounts,  has 
been  received  by  said  executors,  defendants,  so  as  to  make  the 


136  NEW  JERSEY  SUPREME  COURT. 

Perrine  v.  Perrine. 

widow's  share  of  the  whole  sum  in  their  hands  to  bo  appropri- 
ated towards  the  payment  of  legacies,  (provided  the  legacy  of 
three  hundred  dollars,  given  to  plaintiff  in  said  will,  is  to  abate 
in  a  rateable  proportion  with  the  other  legacies  therein)  amount 
to  the  sum  of  one  hundred  and  forty-eight  dollars  and  sixty-nine 
cents;  but  that  the  said  sum  in  their  hands,  to  bo  appropriated 
towards  the  payment  of  said  legacies,  is  insufficient  to  pay  off 
and  satisfy  the  same;  that  the  writ  in  this  cause  was  scaled  and 
sued  out,  and  the  suit  commenced  on  the  second  day  of  Sep- 
tember, eighteen  hundred  and  nineteen;  and  that  on  the  first 
day  of  the  said  month  of  September,  the  day  before  the  suit  was 
commenced,  the  plaintiff  tendered  to  the  defendants  a  refunding 
bond,  (prout  the  same)  and  the  defendants  paid  the  plaintiff  the 
said  sum  of  one  hundred  and  forty-eight  dollars  and  sixty-nine 
cents,  part  of  her  said  legacy  of  three  hundred  dollars,  at  the 
same  time. 

If  the  court  shall  be  of  opinion,  that  the  plaintiff's  said  legacy 
of  three  hundred  dollars  ought  to  abate  in  a  rateable  proportion 
with  the  legacies  of  fifty  dollars,  given  in  said  will  to  Margaret, 
Catharine,  Mary,  Elizabeth,  Rebecca,  Sarah,  and  Lydia,  each 
respectively,  and  to  the  children  of  his  daughter  Jane,  then  judg- 
ment is  to  be  rendered  for  the  defendants,  with  costs;  but  if  the 
court  shall  think,  that  the  said  legacy  ought  not  to  abate  as  afore- 
said, then  judgment  is  to  be  rendered  in  favour  of  the  plaintiff 
for  one  hundred  and  fifty-one  dollars  and  thirty-one  cents,  the 
balance,  and  ten  dollars  and  fifty-nine  cents,  interest  thereon, 
whole  amount  one  hundred  and  sixty-one  dollars  and  ninety 
cents,  with  costs.  Error  in  the  sum  for  which  judgment  shall 
be  rendered,  open  for  correction. 

Upon  this  state  of  the  case,  the  Court  of  Common  Pleas  gave 
judgment  against  the  said  plaintiff,  Hannah  Perrine,  that  she 
take  nothing  by  her  said  writ.  A  writ  of  error  was  thereupon 
brought  to  this  court. 

Hamilton,  attorney  for  plaintiff  in  error.  Wood,  for  defendant. 

KIRKPATRICK  C.  J.  Peter  Perrine,  the  testator,  in  and  by  his 
last  will  and  testament,  gives  and  bequeaths  as  follows,  viz.  "Im- 
primis, I  give  and  bequeath  unto  my  well  beloved  wife  Hannah, 
all  the  articles,  goods,  and  furniture  that  I  received  with  her 
after  our  marriage,  likewise  the  sum  of  three  hundred  dollars ;  the 


FEBKUAKY  TEEM,  1822.  137 

V  Perrine  v.  Perrine. 

said  goods  and  furniture  to  be  delivered  to  her  immediately  after 
my  decease,  and  the  said  sum  of  money  to  be  paid  to  her  within 
three  months  after  my  decease;  all  the  above  mentioned  prop- 
erty, and  the  said  sum  of  money,  I  give  and  bequeath  unto  her, 
my  said  wife  Hannah,  provided  she  shall  accept  the  same  in 
lieu  of  her  right  of  dower,  and  not  otherwise." 

"  Item,  I  give  and  bequeath  unto  my  son  Enoch,  his  heirs,  and 
assigns  for  ever,  all  the  lands  now  owned  by  me,  together  with 
all  the  residue  of  my  moveable  property  of  every  description, 
not  before  bequeathed,  provided  he  shall  pay  the  several  sums 
of  money,  as  is  hereafter  directed." 

Then  he  gives  to  his  seven  daughters,  and  the  children  of  a 
deceased  daughter,  $50  each,  to  be  paid  within  one  year  after 
his  decease,  and  directs,  that  his  son  Enoch  shall  pay  all  his  just 
debts,  funeral  expenses,  the  costs  of  executing  his  will,  and  also 
all  the  several  sums  of  money  I  have  given  and  bequeathed  unto  my 
wife,  children,  and  grandchildren,  as  is  above  directed. 

It  is'admitted,  by  both  parties,  that  the  testator,  neither  at  the 
time  of  making  this  will,  nor  at  any  time  afterwards,  was  seized 
or  possessed  of  any  estate  of  inheritance  whereof  his  wife  could 
be  endowed,  and  that  Enoch,  the  son,  has  never  received,  for  his 
own  use,  any  estate,  either  real  or  personal,  under  the  said  will ; 
for  that  the  estate  which  the  testator  had  in  the  lands  of  which 
he  was  possessed  when  he  made  the  will,  and  which  it  is  sup- 
posed he  intended  to  devise  to  his  said  son,  was  a  tenancy  by 
the  curtesy  only.  These  facts,  thus  admitted  to  be  made  part 
of  the  case,  if  they  might  be  proved  by  evidence,  dehors  the  will 
in  a  court  of  common  law,  but  not  otherwise.  It  is  admitted, 
also,  that  the  personal  estate  of  the  testator  is  not  sufficient  to 
pay  all  the  legacies  bequeathed.  And  the  question  is,  whether, 
upon  this  state  of  facts,  the  legacy  of  $300,  bequeathed  to  the 
wife,  shall  abate  in  proportion  to  the  other  legacies  ?  and  if  the 
court  shall  be  of  opinion,  that  it  shall  abate,  then,  by  the  agree- 
ment, judgment  is  to  be  entered  for  the  defendants,  with  costs, 
and  if  not,  then  for  the  plaintiff  for  $161.90,  with  costs. 

In  the  case  of  Blower  v.  Morret,  (2  Vezey  420)  Lord  Chancel- 
lor Hardwicke,  after  taking  a  view  of  the  cases  upon  this  sub- 
ject, says,  in  substance,  that  a  bequest  being  prefaced  by  the 
words  imprimis,  or,  in  the  first  place,  or  the  legacy  being  made 
payable  immediately,  or,  out  of  the  first  moneys  received,  or  at  a 


138  NEW  JERSEY  SUPREME  COURT. 

Perrine  v.  Perrine. 

4 

time  certain  and  short,  leaving  other  legacies  to  be  paid  after  the 
year,  as  the  law  is,  or,  at  a  more  distant  day,  or  such  other  modes 
of  expression,  docs  not  give  such  legacy  a  preference,  or  exempt 
it  from  a  proportionable  abatement,  in  case  of  a  deficiency  of 
assets.  And  he  says,  further,  in  the  same  case,  that  though  the 
general  principle  be,  that  a  legacy  given  in  lieu  of  dower  shall 
not  abate,  as  was  settled  by  Lord  Chancellor  Cowper  in  the  case 
of  Burridge  v.  Bradyl,  (1  P.  Wms.  127)  yet  that  the  application 
of  this  principle  may  depend  upon  facts  connected  with  the  be- 
quest. If  the  wife,  at  the  time  of  the  making  of  the  will,  was 
entitled,  or  had  an  inchoate  right,  to  any  dower  or  thirds  out  of 
the  testator's  estate,  the  legacy  given  in  lieu  thereof  would  have  a 
preference,  and  would  not  abate,  for  that  the  bequest  in  that  case 
was  setting  a  price  upon  the  dower,  and,  if  the  widow  thought  fit 
to  take  it,  it  became  a  purchase  of  the  dower,  on  her  part,  at  a  fixed 
price,  and  so  was  not  bound  to  abate  in  proportion  to  other  lega- 
cies, because  it  was  a  meritorious  consideration  given  by  her,  and 
not  a  voluntary  bounty  or  favour  from  the  testator.  But  if  she 
had  no  such  title  or  inchoate  right,  as  if  she  had  a  jointure  in  bar 
of  dower  before  the  making  of  the  will,  it  would  be  otherwise. 
And  in  such  cases,  the  legacy  being  expressed  to  be  in  lieu  of 
dower,  is  but  a  closing  of  every  thing,  and  the  words  are  words  of 
course,  and  amount  to  nothing  if  she  was  not  entitled  to  dower. 

We  might  trace  the  same  doctrine  down  through  the  English 
reporters  of  a  later  date,  but,  as  they  are  no  evidence  of  the  law 
in  this  court,  it  would  be  improper  to  do  so.  This  decision  of 
Lord  Hardwicke  settles  the  law  upon  the  case  before  us  in  all 
its  parts.  And  even  if  his  opinion,  and  his  settling  the  law  upon 
this  basis,  wore  of  loss  authority  than  they  are,  the  plain  prin- 
ciples of  common  sense,  I  think,  would  conduct  every  reflecting 
man  to  the  same  conclusion. 

And,  if  this  be  so,  there  certainly  can  be  no  doubt  but  that  the 
fact  of  the  widow's  having  no  title,  or  right  inchoate,  at  the  time 
of  the  making  of  the  will,  or  afterwards,  may  be  made  out  by 
evidence,  dehors  the  will.  This  is  a  matter  which  cannot,  in  the 
common  course  of  things,  appear  upon  the  face  of  the  will,  and, 
therefore,  if  proved  at  all,  it  must  be  by  evidence  dehors.  And 
to  say,  that  the  application  of  the  testator's  estate  in  the  payment 
of  legacies  shall  depend  upon  this  fact,  and  yet  that  this  fact  shall 
not  be  proved,  would  be  an  absurdity  which  the  law  never  can 


FEBEUAEY  TEEM,  1822.  139 

Perrine  v.  Perrine. 

countenance.  And  as  to  the  second  topic  of  argument,  to  wit, 
that  these  legacies  to  the  children  and  grandchildren  are  charged 
upon  the  residue  of  the  estate  given  to  Enoch,  after  the  legacy  to  the 
wife  is  paid,  the  fact  is  not  so,  the  words  of  the  will,  will  not 
bear  that  construction.  The  legacy  to  the  wife  is  as  much,  and 
as  expressly  charged  upon  this  residue  given  to  Enoch,  as  the 
legacies  to  the  children  and  grandchildren.  And  though  it  be 
true,  that  if  a  legacy  be  charged  upon  a  residue,  and  it  should 
turn  out  that  there  should  be  no  residue,  the  legacy  must  fail ; 
yet  if  several  legacies  be  charged  upon  a  residue,  and  it  should 
be  insufficient  to  pay  them  all,  then  they  must  be  paid  pro  rata, 
as  far  as  it  will  reach,  and  that  is  the  case  here. 

I  am  of  opinion,  therefore,  that  the  judgment  of  the  Court  of 
Cpmmon  Pleas  must  be  affirmed,  and  that,  by  the  agreement  of 
the  parties,  judgment  must  be  entered  for  the  defendants,  with 
costs. 

EOSSELL  J.  Peter  Perrine,  supposing  himself  the  owner  of 
real  estate,  devises  it  to  his  son  Enoch.  To  his  widow,  he  leaves 
"his  household  furniture,  to  be  delivered  immediately."  Then  a 
legacy  of  "$300,  to  be  paid  in  three  months,"  in  lieu  of  dower. 
To  his  daughter  3300,  charged  on  the  real  estate  he  left  Enoch. 
It  appears  he  was  only  tenant  by  the  curtesy  of  the  land  left  to 
his  son,  and  that  he  had  no  other  real  estate.  The  widow  took 
possession  of  the  furniture ;  and  the  remainder  of  the  personal 
estate  would  be  wholly  swallowed  up  by  the  payment  of  the 
legacy  left  her,  and  the  testator's  children,  male  and  female, 
would  be  left  without  a  dollar  of  his  estate.  The  question  is,  does 
the  legacy  of  6300,  left  the  widow,  abate  proportionably  with  that 
left  the  daughter?  or,  is  it  of  that  description  called  a  specific 
legacy,  which  must,  at  all  events,  be  first  paid,  if  assets  are 
found  to  enable  the  executor  to  pay  it?  It  is  urged,  that  this  is  a 
specific  legacy,  in  lieu  of  dower,  which  is  always  favoured  as  well 
as  those  in  lieu  of  a  debt;  and  that  the  testator's  will  is  to  take 
effect  according  to  his  understanding  at  the  time,  and  cannot  be 
affected  by  his  mistake  in  the  amount  of  his  property. 

Legacies  -are  general  or  specific.  "The  former  shall  abate  in 
proportion,  notwithstanding  a  direction  in  the  place  or  time  of 
payment.  But  it  may  be  otherwise  on  a  strong  intent;  or  if  it  is 
a  purchase  of  dower,  and  the  wife  entitled  to  dower."  1  Bridg- 


140  NEW  JEESEY  SUPREME  COUBT. 

Wintermute  v.  Hankinson. 

man's  index  572.  1  Per  Wms.  778 — "If  one  grant  an  annuity 
out  of  the  manor  of  Dale,  to  which  he  had  no  title,  though  it 
would  not  be  a  charge  on  the  manor,  yet  it  would  be  good 
against  the  person."  For  the  main  intent  of  the  testator  was  to 
give  a  legacy  to  J.  S.  the  legatee  shall  have  it,  one  way  or  the 
other,  out  of  the  land  or  the  personal  estate.  A  specific  legacy, 
Lord  Hardwicke  says,  (1  Atkins  417)  "is  a  bequest  of  a  particu- 
lar chattel,  distinguished  from  all  others  of  the  same  kind,  as  a 
horse,  a  silver  cup,  money  in  a  certain  chest,"  &c. 

The  general  principle  then  is,  that  legacies  abate  proportiona- 
bly  when  there  is  not  assets  to  satisfy  the  whole,  with  the 
exception  of  specific  articles,  or  where  it  is  for  the  purchase  of 
dower,  when  the  widow  is  entitled  to  dower.  This  legacy  of  $300 
to  the  wife,  who  was  not  entitled  to  dower,  must  be  considered 
a  general  legacy,  and  she  is  not  entitled  to  more  than  a  rateable 
proportion  with  the  other  legatees. 

FORD  J.  concurred. 

CITED  IN  Condit  v.  Gregory,  1  Zab.  431. 


PETER  WINTERMUTE  against  AARON  HANKINSON. 

OH  CEKTIOBAEI. 

Constable  baa  not  such  a  possession  of  the  goods  of  the  defendant,  upon  the 
delivery  of  the  execution,  as  will  enable  him  to  maintain  trover  for  them.  He 
can  only  acquire  such  possession  by  making  an  inventory  of  them. 

This  was  an  action  of  trover  and  conversion,  brought  by  Han- 
kinson, the  plaintiff  below,  to  recover  the  value  of  a  certain  mare. 
Hankinson  founded  his  claim  to  the  mare  upon  a  certain  execution 
which  he  held,  as  constable,  against  the  owner  of  the  mare  pre- 
vious to  her  having  been  transferred  to  Wintermute.  This  claim 
was  resisted  by  Wintermuto,  upon  the  ground,  that  Hankinson  did 
not  prove  he  had  made  any  levy  on  the  said  mare  within  the  time 
prescribed  by  law,  or  at  any  other  time.  It  appeared,  by  the  cer- 
tificate of  the  justice,  that  the  defendant  hindered  the  constable 
from  taking  possession  of  the  mare  by  driving  her  away.  On 
the  trial  before  the  justice,  the  defendant  below,  Wintermute, 
moved  to  nonsuit  the  plaintiff  upon  two  grounds.  1.  That  the 
plaintiff  did  not  prove  that  he  had  made  a  levy  on  said  marc 
within  thirty  days,  (the  time  prescribed  by  law)  or  at  any  other 
time.  2.  That  he  did  not  prove  that  he  had  ever  had  possession 


FEBRUARY  TERM,  1822.  141 

Wintermute  v.  Hankinson. 

of  the  property  in  question.     The  justice  refused  to  nonsuit,  and 
the  jury  gave  a  verdict  in  favour  of  the  plaintiff  for  $65. 

Swing  now  moved  to  reverse  this  judgment,  and  assigned  for 
reason,  that  the  justice  had  refused  to  nonsuit  the  plaintiff  below. 

Wall  opposed  the  motion,  and  contended,  that  under  the  act 
of  1798,  (Pat.  313)  the  constable  was  not  bound  to  make  a 
return  of  the  execution  within  thirty  days.  If  he  has  made  no 
proceedings  he  need  make  no  return.  The  late  act  of  1818, 
makes  the  execution  a  lien  upon  the  property  for  one  year.  That 
a  sheriff's  execution  was  a  lien  upon  the  property  from  the  time  it 
was  delivered  to  the  sheriff,  and  that  the  same  principle  must 
apply  to  executions  in  the  hands  of  constables.  By  the  common 
law,  there  could  be  no  levy  without  actually  taking  the  property 
into  possession ;  but  that  our  statute  altered  this,  and  all  that  was 
meant  by  a  levy  under  our  statute  was  the  making  an  inventory; 
that  the  law  vested  in  the  constable  a  special  property  io  tho 
goods  of  the  defendant,  so  that  he  might  maintain  an  action 
against  any  person  who  takes  them  away. 

Swing,  in  reply,  said,  that  under  the  act  of  1798,  it  had  been 
uniformly  held,  that  the  constable  could  not  act  after  the  expira 
tion  of  the  thirty  days,  unless  he  had  done  something  before  that 
time  to  shew  his  intention  of  acting.  If  the  taking  an  inventory 
is  making  a  levy,  then  the  constable  might  have  done  something 
although  the  property  was  driven  away.  Even  within  thirty 
days,  a  constable  could  not  maintain  an  action  without  making 
a  levy,  much  less  after  the  thirty  days  had  expired. 

Wall  said,  it  had  always  been  held  that,  by  our  statute,  tho 
goods  were  bound  from  the  delivery  of  the  writ. 

FORD  J.  Does  that  statute  apply  to  constables? 
Wall.  Yes. 

FORD  J.  Is  it  not  held,  that  the  constable  cannot  take  the  body 
after  thirty  days  ? 

Swing.  Yes. 

KIRKPATRICK  C.  J.  The  mere  delivery  of  tho  writ  to  the  con 
stable  gives  him  no  right  to  maintain  trover.  He  must  make  an 
inventory,  and  then,  only,  is  he  considered  as  taking  possession  of 
the  goods  of  the  defendant,  and  if  they  are  not  actually  taken 


142  NEW  JERSEY  SUPREME  COURT. 

Howell  v.  Robertson. 

away  by  the  constable  they  are  considered  as  bailed  to  the 
defendant  for  safe  keeping. 

FORD  J.  I  hold  that  the  officer  must  shew  either  an  actual  or 
constructive  possession  to  enable  him  to  maintain  trover.  A  con- 
structive possession  might  arise  from  the  defendant's  delivering 
to  the  constable  an  inventory  of  his  goods,  or,  possibly,  from  the 
constable's  being  ready  to  take  possession,  and  being  prevented 
by  force. 

ROSSELL  J.  concurred  in  the  opinions  delivered. 

KIRKPATRICK  C.  J.  Let  the  judgment  be  reversed. 

J.  S.  Hoisted,  attorney  for  plaintiff  in  certiorari. 

CITED  IH  Matthews  v.  Fame,  6  Hal.  309.  Lloyd  v.  Wyckoff,  6  Hal.  218. 
Stirling  v.  Vandeve,  7  Hal.  294.  State  v.  Kennedy,  3  Harr.  24. 
Caldwdl  v.  Fifield,  4  Zab.  160. 


ARCHIBALD  CAMPBELL  against  BENJAMIN  COOPER. 

05  CEBTIORAKI. 

The  authority  of  a  person  confessing  a  judgment  for  another  must  appear  on 
the  record. 

Woodruff  moved  to  reverse  the  judgment  of  the  justice,  because 
it  had  been  entered  upon  the  confession  of  the  son  of  the  defend- 
ant, and  it  did  not  appear  that  the  son  had  any  authority  to  con- 
fess judgment. 

The  transcript  of  the  justice  stated,  "that  the  defendant 
appeared  by  his  son,  and  confessed  judgment,  whereupon  he 
gave  judgment,"  &c. 

BY  THE  COURT.  Take  a  reversal. 


JOHN  B.  HOWELL  against  ROBERT  ROBERTSON. 

OH  CERTIOBAEI. 

Venire  must  be  sealed  or  verdict  is  bad. 

Vroom  moved  to  reverse  this  judgment,  because  the  venire 
facias  issued  in  the  cause  was  without  a  seal. 

KIRKPATRICK  C.  J.  The  venire  must  be  sealed,  otherwise  a  ver- 
dict is  defective,  and  the  judgment  rendered  must  be  reversed. 

See  1  Pen.  Rep.  266,  contra. 


FEBRUARY  TERM,  1822.  143 

State  v.  Kirby. 

THE  STATE  against  STEPHEN  KIRBY. 

ON   CERTIORARI. 

Where  a  justice  of  the  peace  issues  an  execution  or  tax  warrant  for  fines 
imposed  by  a  military  court  upon  persons  neglecting  militia  duty,  without  hav- 
ing any  list  of  delinquents  returned  to  him  by  the  officer  whose  duty  it  was  to 
make  such  return,  the  execution  or  tax  warrant  will  be  set  aside. 

This  was  a  certiorari  to  bring  up  to  this  court  the  proceedings 
on  a  return  of  delinquents,  or  persons  liable  to  fines  for  neglect 
of  military  duty.  The  justice  made  a  return  to  this  certiorari 
in  the  following  words:  "I  do  herewith  send  to  the  justices  of 
the  Supreme  Court  of  judicature  the  tax  warrant  by  me  issued, 
as  within  I  am  commanded.  And  I  do  further  certify,  that  I 
put  my  name  to  the  said  tax  warrant  without  seeing  or  having 
delivered  to  me  any  return  list  of  delinquents,  nor  does  any 
such  list  remain  with  me,  nor  have  I  any  record  or  proceeding 
whereby  I  can  make  any  more  full  return." 

Upon  the  return  of  the  certiorari,  a  rule  was  obtained,  on  the 
part  of  the  prosecutors,  to  take  affidavits ;  and  by  these  affidavits 
it  appeared,  that  the  tax  warrant  was  issued  by  the  justice  with- 
out the  list  of  delinquents  having  been  returned  to  him  by  the 
officer  "whose  duty  it  was  to  make  such  return,"  and  without 
any  certificate  of  the  fines  having  been  imposed  on  the  delin- 
quents by  any  competent  tribunal,  and  a  variety  of  other  facts 
tending  to  prove  the  reasons  relied  upon  by  the  prosecutors  to 
quash  the  proceedings  of  the  justice;  but  as  the  court  did  not 
found  their  opinion  upon  them,  it  is  deemed  unnecessar}"  to  detail 
them.  The  reasons  assigned  for  setting  aside  the  execution,  or 
tax  warrant,  issued  by  the  justice  were — 1.  Because  the  justice 
had  not  delivered  to  him,  by  the  proper  officer,  a  return  list  of 
delinquents,  or  persons  subject  to  fines  for  neglect  of  military 
dut}^.  2.  Because  the  justice  issued  this  execution  against  many 
persons  named  in  the  schedule  to  the  said  execution  annexed, 
who  had  never  been  subject  to  fines  for  neglect  of  military  duty. 
3.  Because  the  writ  of  execution  is  not  directed  to  any  constable 
by  name.  4.  Because  the  said  writ  of  execution  is  not  directed 
to  one  of  the  constables  residing  within  the  bounds  of  the 
battalion  in  which  the  said  delinquents  are  said  to  belong. 

White  now  moved  to  set  aside  the  proceedings  for  reasons 
above  assigned,  and  read  the  8tb,  10th,  and  llth  sections  of  the 


144  NEW  JERSEY  SUPREME  COURT. 

State  v.  Kirby. 

militia  act  of  1815,  and,  also,  a  number  of  affidavits,  to  prove  the 
facts  upon  which  the  above  reasons  were  founded,  together  with 
the  return  of  the  justice  to  the  certiorari.  He  also  read  the  61st 
section  of  the  militia  act,  and  contended,  that  in  order  to  make 
a  man  liable  under  this  act  to  a  militia  fine,  it  was  necessary  that 
he  should  not  be  taxed  by  the  assessor  as  an  exempt.  It  was 
the  duty  of  the  captain  to  deliver  to  the  assessor  a  list  of  all  those 
persons  who  are  liable  to  do  military  duty.  The  captain  neg- 
lected to  do  this,  and  the  assessor,  not  receiving  any  list  from 
him,  taxed  each  of  these  delinquents  the  sum  of  six  dollars,  and, 
therefore,  they  could  not  be  fined  by  the  militia  court,  otherwise 
they  would  be  compelled  to  pay  twice.  The  court  martial  car 
levy  no  fine,  and  has  no  jurisdiction  over  a  person  who  is  exempt 
from  military  duty.  3  Cranch  331-7. 

To  sustain  these  proceedings,  the  persons  who  are  made  liablt 
to  fines,  the  persons  against  whom  the  warrant  issues,  should 
have  notice.  See  7  John.  97.  Here  the  justice  issues  the  war 
rant;  he  makes  no  record  of  it.  The  paymaster  may,  the  nex"* 
day,  hand  the  list  to  another  justice.  There  is  no  record  mad"! 
by  which  the  person  fined  can  prove  that  he  has  paid  the  money  ; 
nor  does  it  appear  that  there  was  any  affidavit  of  the  sergeant, 
that  the  men  were  absent,  or  that  the  list  was  presented  to  thi\ 
justice. 

Ewing,  contra,  contended — 1.  That  there  was  evidence  to  shew 
that  the  battalion  paymaster  delivered  the  return  list  of  delin- 
quents to  the  justice,  and  that  it  was  in  his  possession  at  the  time 
he  signed  the  warrant.  2.  All  men  who  are  enrolled  are  liable 
to  do  military  duty,  and  if  they  fail  to  attend  they  are  liable  to 
be  fined.  The  liability  of  these  men  depended  upon  their  being 
of  age  and  not  exempted  by  the  act,  and  did  not  depend  upon 
the  captain's  making  a  return ;  for,  if  the  captain  fails  to  make 
return,  they  are  not  absolved  from  militia  duty.  They  must  be 
actually  placed  upon  the  assessor's  tax  list,  and  pay  the  tax 
before  they  are  absolved  from  militia  duty.  The  gentleman 
should,  therefore,  go  farther,  and  shew  that  they  had  really  been 
put  upon  the  assessor's  duplicate.  Those  upon  the  duplicate  are 
exempt,  and  those  only.  He  does  not,  therefore,  shew  enough. 
Archimedes  could  have  raised  the  world  if  he  could  have  found 
the  place  to  stand  on  ;  and  the  argument  of  the  gentleman  would 
be  good  enough  if  ho  had  any  foundation  to  support  it.  Until  he 


FEBRUARY  TERM,  1822.  145 

State  v.  Kirby. 

shews  that  these  men  have  been  put  upon  the  duplicate,  and 
made  exempts  according  to  the  terms  of  this  act,  he  shews 
nothing  to  relieve  them  from  this  warrant.  3.  As  to  the  objection, 
that  no  notice  was  given  by  the  sergeant  to  the  delinquents,  the 
provision  as  to  this  is  contained  in  the  8th  section.  And  the  ser- 
geant must  make  oath  before  the  company  court,  that  the  notice 
has  been  given.  The  first  answer  is,  that  the  present  application 
is  to  quash  the  warrant.  We  are  not  to  go  back  to  look  into  these 
antecedent  matters.  It  might  be,  that  if  these  individuals  had 
not  been  notified  that  they  might  have  a  remedy  against  the 
officers  omitting  their  duty.  But  it  would  not  be  sufficient  to 
quash  the  proceedings  of  the  justice,  for  if  he  issues  the  warrant 
upon  the  exhibition  of  such  matter  as  the  Jaw  requires,  that  is 
sufficient.  Another  answer  is,  that  the  decision  of  the  company 
court,  being  a  court  of  competent  jurisdiction,  is,  in  this  respect, 
final ;  if  they  intended  to  get  rid  of  their  fines  they  should  have 
directed  the  certiorari  to  the  company  court  itself.  4.  As  to  the 
objection,  of  the  constable's  not  residing  within  the  bounds  of 
battalion,  he  does  not  shew  that  the  constable  to  whom  it  was 
directed  lived  out  of  the  bounds  of  the  battalion,  and,  therefore, 
until  he  shew  that,  he  can  take  no  objection.  It  is  not  necessary 
that  it  should  be  directed  to  a  constable  by  name. 

Mr.  L.  H.  Stockton,  who  was  concerned  with  White,  cited  (for 
the  counsel  opposed)  the  following  cases,  to  shew  that  certain 
things  should  have  appeared  on  the  proceedings.  Cowp.  26.  7 
Term  Rep.  364.  4  Bur.  2245. 

Ewing  replied  to  these  cases,  that  the  form  of  the  action  was 
prescribed  in  the  act  of  assembly,  and,  therefore,  they-  did  not 
apply. 

Wall,  on  the  same  side,  said  he  would  submit  the  case  on  the 
argument  of  his  colleague,  Mr.  Ewing. 

L.  H.  Stockton,  in  reply,  said,  the  proceedings  in  this  case 
being  contrary  to  the  common  law,  the  construction  of  them 
must  be  strict,  not  liberal.  His  principles  are  found  in  the  cases 
cited.  Cowp.  26.  7  Term  Eep.  364.  4  Bur.  2245. 

1.  There  was  a  total  want  of  jurisdiction  in  any  military  court 
against  the  prosecutors  of  this  writ.    The  61st  section  was  the  one 
upon  which  he  relied  to  shew  that  these  proceedings  were  all  * 
coram  non  judicie.    All  persons  who  are  not  delivered  by  the 

VOL.  i.  K 


146  NEW  JERSEY  SUPEEME  COURT. 

State  v.  Kirby. 

captain  to  the  assessors,  as  enrolled  by  him,  and  doing  military 
duty,  are,  by  the  effect  of  the  statute,  exempt,  and  to  be  so  con- 
sidered. Now  no  such  enrolment  was  made  as  to  the  prosecutors 
of  this  certiorari.  It  follows,  as  an  irresistible  corrollary,  that  if 
the  persons  are  not  enrolled  then  they  cannot  be  proceeded 
against  by  the  military  court  or  officers. 

If  these  military  officers  had  delivered  this  sworn  roll,  all  those 
not  included  in  the  list  of  those  doing  military  duty  would  be 
exempt,  and  liable  to  pay  six  dollars  to  the  treasurer.  The  inten- 
tion of  the  act  was,  that  those  men  who  were  conscientiously 
scrupulous  of  bearing  arms,  might  be  excused  by  paying  a  com- 
mutation, and  not  to  enlist  the  pious  quaker  or  methodist  along- 
Bjide  of  the  whiskered  warrior.  If  we  can  shew  the  court  that 
the  warrant  issued  by  the  justice  is  void  they  cannot  say,  that 
there  are  other  proceedings  preparatory  to  those  which  we 
have  not  brought  up. 

2.  To  legalize  such  a  warrant  as  has  been  issued,  the  act  re- 
quires that  the  justice  should  have  a  list  of  delinquents  exhibited 
to  him,  and  without  this  fundamental  and  incipient  document 
the  warrant  and  proceedings  thereon  is  void.  He  read  the  12th 
section  of  the  militia  act.  This  document  should  not  only  exist, 
but  should  be  preserved,  and  should  have  been  brought  up  to 
Bupport  this  warrant. 

KIRKPATRICK  C.  J.  This  is  a  certiorari  directed  to  Stephen 
Kirby,  esq.,  one  of  the  justices  of  the  peace  of  the  county  of 
Gloucester,  commanding  him  to  send  up  his  proceedings  touch- 
ing a  certain  warrant  issued  by  him  on  the  13th  of  January,  1818, 
for  the  levying  and  collecting  of  certain  fines  adjudged  against 
certain  persons  belonging  to  the  second  battalion  of  the  second 
regiment  of  the  Gloucester  brigade,  in  the  said  warrant  named, 
for  neglect  of  military  duty;  and  also,  to  send  up  the  list  of  de- 
linquents delivered  to  him  by  the  brigade  paymaster,  upon  which 
the  said  warrant  was  granted,  together  with  all  things  touching 
and  concerning  the  same,  as  fully  and  entirely  as  before  him  the 
same  remained. 

To  this  certiorari  the  said  justice  has  returned  in  these  words: 
"I  do  herewith  send  to  the  justices  of  the  Supreme  Court  of 
Judicature,  the  tax  warrant  by  me  issued,  as  within  I  am  com- 
manded. And  I  do  further  certify,  that  I  put  my  name  to  the 
taid  tax  warrant  without  seeing  or  having  delivered  to  me  any 


FEBRUARY  TERM,  1822.  147 

State  v.  Kirby. 

return  list  of  delinquents,  nor  does  any  such  list  remain  with  me, 
nor  havo  I  any  record  or  proceeding  whereby  1  can  make  any 
more  full  iS»turn." 

From  this  return  it  appears,  that  there  are  contained  in  the 
Raid  warrant  the  names  of  two  hundred  and  twenty-five  persons, 
and  that  the  aggregate  of  the  fines  to  be  levied  amounts  to  8910. 
This  is  cert'  inly,  both  as  to  the  number  of  persons  affected,  and 
the  amoiiut  of  money  to  be  made,  a  matter  of  no  small  considera- 
tion; and  yet  the  proceeding  is  taken,  as  appears  by  the  affida- 
vits, upon  the  mere  suggestion  of  a  military  officer,  without  any 
list  of  delinquents  returned  to  the  justice  by  the  officer  whose 
duty  it  is  to  make  such  return,  without  any  certificate  of  the 
flues  lui>ing  been  imposed  by  any  competent  court,  without  any 
entry  made,  without  any  paper  filed,  without  any  thing  of  record 
to  which  '.he  parties  affected  can  have  recourse  to  test  the  regu- 
laiity  of  the  proceeding. 

1 1  is  true,  that  in  behalf  of  the  State  they  have  produced  the 
afii-lnvit  ol  the  brigade  paymaster,  in  which  he  states,  that  be 
drew  the  warrant  himself;  that  upon  seeing  the  justice  passing 
his  office,  he  called  him  in  to  sign  it,  and  he  did  sign  it;  that  the 
list  of  delinquents  annexed  to  it  was  made  out  by  him  in  part, 
before  the  signing,  and  was  completed  by  him,  afterwards,  by 
adding  a  number  of  names  thereto ;  and  that  be  took  those  names 
from  returns  made  to  him  in  due  form  of  law.  But  though  it  has 
been  made  a  matter  of  much  interest  to  support  this  warrant, 
though  much  pains  have  been  taken,  and  many  witnesses  exam- 
ined, not  one  of  these  returns  has  been  produced  here. 

!Now.  what  does  all  this  amount  to?  does  the  affidavit  of  the 
paymaster  at  all  better  the  matter?  taking  the  thing  as  he  states 
it  to  be.  is  it,  in  any  measure,  a  compliance  with  the  law,  either 
upon  'nis  part  or  on  the  part  of  the  justice?  In  what,  is  it  any 
thing  m<~>rc  than  the  brigade  paj-master  getting  the  justice  to  sign 
the  warrant,  and  then  annexing  to  it,  what,  indeed,  is  the  very 
essence  o!  it,  such  names  as  delinquents,  and  such  fines  opposite 
to  them  as  he  might  think  fit ;  and  that  without  any  judgment  or 
discretion  of  the  justice  exercised  thereon,  without  any  entry  or 
other  document  to  which  recurrence  can  bo  had  for  redress? 
Can  it  be,  that  the  property  of  two  hundred  and  twenty-five  citi- 
zens can  be  made  liable  to  seizure,  and  their  persons  to  imprison- 
ment, upon  proceedings  like  these?  Certainly  not  in  a  free  coun 


148  .NEW  JERSEY  SUPEEME  COURT. 

State  v.  Parker. 

try,  where  rights  are  defined  by  law,  where  no  man  can  bo 
touched  in  his  person,  property,  or  reputation  without  the  lawful 
judgment  of  a  competent  tribunal,  and  that  recorded,  or  in  some 
•Way  registered,  so  that  it  may  be  carried  up  and  reconsidered  by 
tho  tribunals  of  the  last  resort.  It  is  manifest,  therefore,  that 
iJiiH  warrant  was  issued  improvidently  and  without  authority ; 
nnd  that,  therefore,  it  must  be  set  aside  as  to  all  ttiose  who  have 
voino  before  the  court  as  the  prosecutors  of  this  writ. 

From  this  view  of  the  case,  Mr.  Justice  FORD  dissented ;  but, 
by  the  Chief  Justice  and  Justice  ROSSELL, 

.Let  the  warrant  be  set  aside  as  to  the  prosecutors  of  this  writ 
of  ccrtioran. 

CITED  IN  State  v.  Atkinton,  4  Hal.  275.  State  v.  Mor.  Can.  &  B'kg  Co.,  2  Or 
411.  N.J.R.R.&Tr.  Co.  v.  Suydam,  2  Harr.  42.  Camden  City  v 
Mulford,  2  Dutch.  55. 


THE  STATE  against  J.  PARKER. 

OK   IHDICTMEHT. 

Quarter  Sessions  may  grant  a  new  trial  upon  the  merit*. 

.1 .  PAR*  EH  was  indicted  for  having  a  counterfeit  note  in  his  pos- 
session, with  intent  to  pass;  and,  upon  his  trial  before  the  Quarter 
BoflsionH  of  the  county  of  Monmouth,  the  jury  found  him  guilty. 

Tho  defendant's  counsel  moved  for  a  new  trial,  upon  the 
ground,  that  tho  prosecutor  for  the  State  did  not  prove  that 
I'urker  know  the  note  to  be  counterfeit,  and  the  Court  of  Quar- 
ter Sessi  JDS  granted  a  rule  for  a  new  trial,  upon  that  ground. 

Wolf.,  the  deputy  attorney-general,  now  moved  the  Supreme 
Court  for  a  rule  to  shew  cause  why  a  mandamus  should  not  issue 
to  the  Qiwrtcr  Sessions  of  Monmouth  commanding  them  to  ren- 
der judgment  on  the  verdict  of  the  jury,  and  forbidding  them 
to  proceed  on  tho  rule  for  a  new  trial,  and  contended,  that  the 
Uourt  of  Quarter  Sessions  erred  in  granting  the  rule  for  a  new 
trial ;  bec«,flt»o,  being  a  court  of  inferior  jurisdiction,  they  had 
no  ri^ht  to  gra.it  a  new  trial  on  the  merits,  and  cited  in  support 
of  hi*  portion,  1  Chit.  Crim.  Law  373,  654.  13  East  416,  note. 
1  John.  179.  2  Caines  in  Er.  319,  opinion  of  Justice  Kent.  4  Black, 
(torn.  27 1 -2.  j.  at.  N.  J.  Laws  130,  sec.  2.  Stat.  Edward  III.  Stat. 
at  Large  1537.  Learn.  &  Spi.  233.  (See  Appendix  S,  the  part  of 
Learn.  <fr  Spi.  here  citod.) 


FEBRUARY  TERM,  1822.  149 


Rowland  v.  Stevenson. 


Scott,  and  Wood,  contra,  contended,  that  the  Court  of  Quarter 
Sessions,  in  this  state,  had  the  right  of  granting  new  trials  upon 
the  meriis,  rr.1  that  they  had  exercised,  in  a  variety  of  instances, 
particularly  in  the  case  of  John  Armstrong,  who  was  indicted 
in  the  councy  of  Somerset;  that  the  principle  had  been  recog- 
nized in  the  case  of  the  State  v.  Aaron,  I  South.  231,  where  the 
Court  of  Oyor  and  Terminer  granted  a  new  trial;  and  that  the 
reasonings  of  the  gentleman  equally  applied  to  this  court  as  to 
the  Court  of  Quarter  Sessions,  for  it  came  within  his  definition 
of  n  court  of  inferior  jurisdiction,  and  if  one  possessed  the  right 
of  granting  new  trials  the  other  had  it  also.  The  same  argument 
might,  also,  be  applied  to  the  District  Court  of  the  United  States, 
which  constantly  exercised  the  right  of  granting  new  trials. 

P-.I  •.•uri<im.  It  has  been  so  long  the  practice  of  the  Courts  of 
f'omn»on  Pleas  and  Quarter  Sessions  to  grant  new  trials,  that  it 
in  deemed  inexpedient  at  this  time  to  deny  their  right  so  to  do, 
even  if  it  might  have  been  questionable  at  first. 

JJulo  for  a  mandamus  refused. 


SAMUEL  ROWLAND  and  others  against  JOHN  H.  STEVENSON. 

Where  a  person  contracts  a  debt  in  Pennsylvania,  for  which  he  is  sued  in 
tlii*  «tat«j,  au-V  -i'lring  the  pendency  of  the  suit  here,  goes  to  Pennsylvania,  and, 
htMug  ai  rest»J  by  other  creditors  there,  takes  the  benefit  of  the  insolvent  laws 
of  that  rtUUt.  *.  ti»  court  will  order  an  zxoneretur  to  be  entered  on  the  bail  piece 
iti  Hit.  Buit  jj*;ii  lug  here. 


,  ir*  bahalf  of  the  defendant,  moved,  that  an  exoneretur 
should  l>o  '.sr.tered  0:1  the  t-ail  piece  filed  in  this  cause.  The  facts 
ol'tho  case  wore  admitted  to  be  these:  Samuel  Rowland  became 
indebted,  'ir  Philadelphia,  to  Stevenson.  Upon  this  debt  Steven- 
sou  sued  Rowland  in  this  state.  Pending  these  suits  Rowland 
was  tatcou  .;n  custody  in  Philadelphia,  at  the  suit  of  different 
persons,  for  a  different  debt,  and  was  there  discharged  as  an 
insolvent.  Tho  debt  for  which  this  action  was  brought  was 
contracted  in  Philadelphia,  and  Stevenson  resided  there  at  the 
time  it  was  contracted,  and  at  the  time  of  the  discharge.  The 
discharge  was  in  regular  form,  and  duly  certified.  Rowland  was 
*  resident  of  New  Jersey. 

Kiting  contended,  that  the  discharge  in  Pennsylvania  was  a  pro- 
tection to  the  person  of  Rowland  ;  the  court  would  not  suffer  a  ca. 


150  JNEW  JERSEY  SUPREME  COURT. 


Rowland  v.  Stevenson. 


#i.  to  bo  :B»c.td  against  Rowland ;  and  if  it  was  issued  and  taken 
the  court  would  discharge  him.  1  South.  202.  This  position 
being  established,  the  only  question  was,  whether  the  exoneretur 
should  bo  entered,  a  id  of  that  there  could  bo  no  doubt. 

Wall  admitted,  that  if  the  first  position  of  the  gentleman  was 
correct  tJio  i*ocond  followed  of  course.  While  the  suits  were 
pending  in  this  *tute,  Rowland  goes  into  the  state  of  Pennsyl- 
vania, and  takes  the  '  onefit  of  the  insolvent  law.  It  is  imma- 
terial whether  voluntary  or  not,  for  it  appears  to  mo,  that  the 
suit  bcin?»  commenced  before  he  went  the  lex  fori  had  attached. 
2  John.  IDS.  II  John.  195.  It  is  the  same  as  if  the  suit  was  com- 
menced hero,  n  the  contract  was  made  here.  It  is  only  to  the 
interpellation  of  contracts  that  the  lex  fori  applies.  As  to  the 
remedies,  it  ''OP  not  depend  upon  the  ground  of  their  residing 
in  different  tales;  when  they  come  into  our  courts  they  must 
be.goverr.ed  by  tne  course  of  proceedings  in  our  courts,  viz.  the 
lex  Jon*  By  tne  laws  of  this  state,  the  plaintiff  is  entitled  to 
hold  the  \»ail  until  they  are  discharged  in  the  manner  pointed 
out.  by  our  laws.  Here  the  rights  of  the  plaintiff  had  attached 
before  R(.'.v.anu  went  to  Philadelphia  to  get  a  discharge.  I  find 
no  case  vrhore  tbo  defendant  has  been  discharged  from  debt  in 
one  state  if,er  a  suit  actually  commenced  for  that  debt  in 
another,  but  th  ;re  is  a  case  in  Johnson  which  appears  to  bear 
upon  it.  7  John.  117,  White  v.  Canfield. 

'Ihe  discharge  in  one  state  is  only  the  discharge  of  the  body, 
ard  is  local  in  its  operation.  It  was  so  decided  in  Peck  v.  Hozier 
(11  John.  34C)  where  it  was  determined,  that  a  person  who  had 
i/rrested  in  another  state,  and  discharged  from  imprison- 
MI.  dor  toe  act  of  the  legislature  of  that  state,  may  be 
arrostoi  a^u  'ield  to  bail  in  New  York  for  the  same  cause  of 
acticj  at  tne  suit  of  the  same  plaintiff.  If  this  principle  is  cor- 
rect, it  applies  much  stronger  in  this  case,  where  the  suit  had 
been  commenced  in  this  state  before  the  discharge  made.  The 
assignee.:  ir.  Pennsylvania  could  not  act  here;  the  debtor  has  no 
property  in  that  state.  It  would  give  rise  to  all  kinds  of  fraud; 
the  creditor  there  could  never  have  any  redress  against  him. 

Eicing.  If  this  application  bo  novel,  it  must  be  because  no  one 
has  thought  proper  to  oppose  it;  but  the  principles  upon  which 
the  application  is  made  are  not  novel.  The  case  in  2  John,  does 


FEBRUARY  TERM,  1822.  151 

Boqua  v.  Ware. 

not  apply.  As  to  the  case  in  11  John,  it  is  opposed  to  the  deci- 
sion in  South,  but  even  that  does  not  go  the  length  which  the 
gentleman  does.  In  the  case  in  7  John,  the  debt  was  contracted 
in  New  York,  and  the  discharge  in  Connecticut.  The  case  in  14 
John,  is  the  same  thing  in  effect ;  the  debt  was  contracted  in 
Barbadoes,  the  plaintiff  resided  in  New  York,  and  the  discharge 
was  in  Massachusetts.  We  are  brought  back  fairly,  then,  to  the 
principles  contained  in  the  case  of  Vannuxem  v.  Hazlehurst. 
When  the  discharge  was  obtained,  makes  no  difference,  whether 
it  was  after  the  suit  commenced  or  before. 

BY  THE  COURT.    Let  there  be  an  exoneretur  entered  on  the  bail 

piece. 

CITED  isr  Wood  v.  Martin,  5  Hal.  256. 


JOHN  BOQUA  against  ANDREW  WARE. 

When  a  plaintiff  moves  for  judgment  upon  a  postea  which  states,  that  the 
defendant  made  default  at  the  circuit,  and  this  motion  is  opposed  upon  the 
ground,  that  notice  of  trial  was  not  served,  proof  of  duo  notice  may  be  made, 
either  at  the  circuit  or  at  bar. 

Upon  the  coming  in  of  the  postea  in  this  case,  whereby  it 
appeared  that  the  defendant  made  default  at  the  circuit, 

Jeffers  moved  for  judgment  thereon. 

Armstrong  objected  to  this  motion,  and  contended,  that  plain- 
tiff's attorney,  to  entitle  him  to  judgment,  ought  to  prove  due 
service  of  notice  of  trial.  He  alleged,  that  notice  of  trial  had 
not  been  duly  served  on  the  defendant's  attorney,  and,  there- 
fore, moved  for  a  rule  to  shew  cause  why  the  verdict  should  not 
be  set  aside. 

Jeffers  said,  that  the  cause  had  been  regularly  noticed,  and 
brought  down  to  the  circuit  for  trial ;  that  the  cause  was  tried, 
and  a  judgment  obtained,  in  the  presence  of  the  attorney  on 
record,  without  his  making  any  objection  to  the  service  of  the 
notice. 

KIRKPATRICK  C.  J.  The  real  question  between  you  is,  where 
the  notice  of  trial  must  be  proved,  whether  at  ttie  circuit  or  at  bar. 

The  Chief  Justice  then  asked  Mr.  Wall,  as  amicus  curice,  what 
the  practice  was  ? 

Wall  said,  it  was  customary  to  prove  it  at  bar. 


152  NEW  JERSEY  SUPREME  COURT. 

Stephens  v.  Meguire. 

Mr.  L.  H.  Stockton,  being  then  called  on  for  his  opinion,  said, 
he  thought  the  recent  course  of  practice  was  to  prove  it  at  bar. 

K  iKKi'ATHUK  C.  J.  There  appears  to  be  some  incongruity  in 
that,  but  I  believe  that  is  the  practice. 

FORD  J.  said,  that  it  had  been  the  practice  when  it  was  usual 
to  try  causes  upon  the  nisi  prius  record,  curia  advisare  vult. 

At  a  subsequent  day,  during  the  term, 

KIRKPATRICK  C.  J.  said,  the  court  had  conferred  upon  this  case, 
and  were  of  opinion,  that  if  the  party  appeared  at  the  circuit 
and  made  objection  to  the  notice,  the  judge  at  the  circuit  might 
hear  and  determine  it ;  but  if  the  party  did  not  appear  at  the 
circuit  and  make  objection,  he  might  take  the  objection  at  the 
bar ;  and,  therefore,  it  might  be  done  either  way. 

FORD  J.  There  has  been  doubt  as  to  the  former  practice ;  but 
on  a  judgment  by  default  there  could  be  no  argument,  and  there 
it  must  be  settled  at  the  bar.  But  where  the  question  arises, 
and  is  discussed,  at  the  circuit,  and  the  opinion  of  the  judge  is, 
that  the  notice  is  regular,  there  the  judgment  cannot  bo  entered 
as  by  default,  but  in  the  usual  manner;  and  then  the  question 
cannot  arise  at  the  bar.  The  question  of  notice,  in  this  case,  is 
now  open.  The  plaintiff  may  be  admitted  to  prove  notice,  be- 
cause that  question  did  not  arise,  and  was  not  discussed,  at  the 

circuit 

CITED  IH  Norwood  v.  Smethurst,  1  Vr.  232. 


SAMUEL  "W.  STEPHENS  and  ELIZABETH   SNEED,  administrators  of 
Griffin  Sneed,  deceased,  against  WILLIAM  MEGUIRE. 

The  affidavit  to  hold  to  bail  for  money  due  on  articles  of  agreement,  must 
•Ute  the  breach  of  the  articles  of  agreement,  or  the  defendant  will  be  dis- 
charged on  common  bail. 

WHITE  moved  to  discharge  the  defendant  on  common  bail, 
because  the  affidavit  to  hold  to  bail  was  insufficient.  The  affida- 
vit was  in  the  form  following:  "A.  B.  being  duly  sworn,  depos- 
eth  and  saith,  that  William  Meguiro  is  indebted  to  Samuel  W. 
Stephens  and  Elizabeth  Sneod,  administrators  of  all  and  singular 
the  goods  and  chattels,  rights  and  credits,  of  Griffin  Sneed,  de- 
ceased, in  the  sum  of  thirteen  hundred  dollars,  due  on  a  certain 
article  of  agreement  made  and  entered  into  between  Griffin 


FEBKUAEY  TE11M,  1822.  153 


Wilkins  v.  Budd. 

Sneed,  in  hi-  lifetime,  and  the  said  William  Meguire.     Dated  the 
ninteenth  day  of  May,  1815." 

Tho  objections  to  this  affidavit,  he  said,  were — 1.  The  affidavit 
was  made  by  t'  e  attorney  in  the  cause.  He  conceived  it  incon- 
sifltont  with  practice  for  the  attorney  to  make  an  affidavit  to  hold 
to  bail,  when  the  plaintiff  himself  was  within  the  jurisdiction  of 
the  court. 

2.  Tho  affidavit  is  made  by  A.  B.  a  third  person,  not  party  to 
the  suit,  and  d';es  not  state,  whether  it  is  made  by  him  as  attorney 
or  agent,  or  in  what  character. 

3.  Tho  affidavit  does  not  set  out  any  breach.     It  states  the 
money  to  be  due  on  a  certain  article  of  agreement.     It  does  not 
appear  bat  what  these  articles  of  agreement  have  been  completed. 

FORD  J.  The  great  defect  in  the  affidavit  is,  that  it  does  not 
set  out  a  breach. 

By  THE  COURT.  Let  the  defendant  be  discharged  on  common 
bail. 


WILKINS  and  BLACK  against  BUDD. 

This  court  will  not  order  a  judgment  to  be  vacated  because  the  plaintiff  thinks 
he  has  discovoied  a  partner  of  the  defendant,  to  enable  plaintiff  to  bring  an 
action  against  the  defendant  and  such  supposed  partner. 

WALL  applied  to  the  court  to  vacate  the  judgment  obtained  by 
the  plaintiffs  against  Budd  in  this  case.  He  said,  that  since  the 
judgment,  Wilkins  and  Black  thought  they  had  discovered  a 
partner  of  Budd,  viz,  Jones,  and,  therefore,  as  they  have  been  able 
to  obtain  nothing  on  the  execution  against  Budd,  they  wished 
to  vacate  their  judgment  against  him,  so  as  to  proceed  against 
Budd  and  Jones,  as  partners. 

I  can  find  no  case  authorizing  the  vacation  of  the  judgment; 
but  in  18  John.  459,  476,  484,  I  find  something  touching  upon 
the  case.  Ail  the  law  relative  to  a  judgment  obtained  against  one 
person,  before  a  dormant  partner  is  discovered,  is  there  fully  dis- 
cussed. No  ono  could  be  injured  by  allowing  the  judgment  to  be 
vacated,  except  Jones,  the  dormant  partner,  and  he  can  have  no 
right  to  oppos*  the  application. 

Eicing,  on  brha'.f  of  Wesley  Budd,  the  defendant  in  the  former 
action,  oppoced  this  motion.  In  March,  1818,  Isaac  Wilkins 


154  NEW  JEESEY  SUPEEME  COUET. 

Wilkins  v.  Budd. 

filed  an  aft* davit,  fiat  Budd  was  indebted  for  goods,  wares,  &c. 
sold  by  NVilKiiiti  and  Black.  At  the  circuit,  the  plea  of  Budd  was 
relinquished,  snd  &ca.  sa.  issued,  but  nofi.fa.  Budd  was  arrested 
on  the  c.a.  mi.  and  a  compromise  took  place  between  Budd  and 
Wilkir.s  ana  Black,  and  they  ordered  the  sheriff  to  discharge 
Budd ;  and  auerwards  Wilkins  and  Black  prosecuted  Budd  and 
Joiieti  on  the.  same  cause  of  action;  and  fearing  that  this  judg- 
ment may  b*  set  up  against  their  recovery  in  this  second  action, 
have  mov  L  J  to  vacate  their  judgment  against  Black.  This.appli- 
cation  is  made  three  years  after  the  judgment  was  obtained.  I 
insist,  that  tl.e  court  have  no  power  at  this  lapse  of  time  to  vacate 
the  judgment.  If  the  recovery  of  judgment  against  one  partner 
is  a  bar  to  an  action  against  two,  then  the  court  have  no  power  to 
deprive  him  of  that  right.  There  is  no  instance  where  a  plaintiff 
hag  boon  suffered,  after  such  a  lapse  of  time,  to  vacate  a  judg- 
ment; oven  a  '.7rit  of  error  could  not  now  be  brought.  Has  any 
power  beer  shown  to  reside  in  this  court  of  vacating  judgment 
after  Hur.b  a  lapse  of  time  ?  There  is  a  case  in  Salheld  which  says, 
the  court  may  vacate  their  judgment  during  the  term,  but  no  case 
can  bu  found  where  they  have  done  it  at  a  subsequent  term. 

Wall,  in  reply,  said,  he  had  not  supposed  that  the  gentleman 
wouU  havo  placed  himself  upon  the  ground,  that  the  court  had 
not.  power  to  interfere  during  the  term,  after  the  opinion  expressed 
by  this  oourt  in  the  case  of  Reed  v.  Bainbridge,  1  South,  351. 
This  case  fnily  establishes  the  power  of  the  court  to  interfere.  Tho 
case  in  the  Supreme  Court  of  the  U.  S.  (6  Cranch  253)  is  the  only 
ca«u  which  says,  that  a  judgment  against  one  partner  will  not  bar 
an  action  against  the  two ;  but  this  is  opposed  by  the  case  in  the 
Supremo  Court  of  New  York,  and  by  Chief  Justice  Kent  and 
Justice  Washington.  The  objection  entitled  to  most  weight  is, 
that  Budd  has  been  arrested  and  discharged;  but  the  general 
fact,  that  tho  party  derived  no  satisfaction,  either  actually  or 
legally,  is  correct.  Tho  circumstances  of  the  ca.  sa.  having  been 
issued,  ia  no  discharge ;  he  must  have  been  actually  arrested,  or 
have  paid  the  money.  Your  honours  must  confine  your  attention 
to  what  appears  upon  the  record,  viz.  the  sheriff's  return.  The 
return  was  "wived  the  plaintiff's  discharge  from  the  within  writ" 
This  was  only  to  exonerate  the  sheriff,  and  the  defendant, 
Budd,  has  no  right  to  take  any  advantage  of  that  discharge. 
AH  to  the  effect  upon  Budd's  interest,  it  is  imaginary;  there  can 


FEBRUARY  TERM,  1822.  155 

Chumar  v.  Wood. 

be  no  injurious  consequences  to  Budd  in  case  we  succeed.  Jones 
is  the  only  one  who  is  interested  in  opposing  this  application. 
There  is  no  analogy  to  a  writ  of  error,  and  because  a  writ  of 
error  could  not  be  brought  after  three  years,  it  is  no  reason  why 
the  court,  after  that  lapse  of  time,  would  not  vacate.  But  this 
application  was  made  at  the  last  term,  when  three  years  had  not 
expired,  curia  advisare  vult. 

At  a  subsequent  day  in  the  term,  the  court  said,  they  had  con- 
ferred upon  this  case,  and  they  refused  to  vacate  the  judgment, 
but  ordered  the  rule  to  shew  cause  to  be  discharged. 


JOSEPH  CHUMAR  against  PETER  B.  WOOD. 

OH  CEETIOEAEI. 

A  conveyance  of  chattels  unaccompanied  with  possession  IB  void. 

This  action  was  commenced  in  the  form  of  an  action  on  the 
case,  and  so  styled  in  the  justice's  docket.  But  the  state  of 
demand  complained  against  the  defendant  below,  Joseph  Chumar, 
"for  that  he,  on  the  13th  October,  entered  the  leased  premises 
of  Thomas  Bedle  and  Thomas  Carhart,  in  the  township  of  Mid- 
dletown  and  county  of  Monmouth,  and  at  sundry  times,  from 
the  said  13th  day  of  October,  1820,  until  the  commencement  of 
this  suit,  took  and  carried  away  24  cords  of  oak  wood,  the 
property  of  the  plaintiff,  to  his  damage,"  &c.  The  defendant 
pleaded,  that  he  was  not  guilty  of  the  trespass  charged,  and  for 
further  plea,  that  the  wood  which  the  said  plaintiff  had  charged 
him  with  was  the  property  of  the  Rev.  John  Croes,  by  whose 
request  and  order  the  said  Joseph  Chumar  acted.  The  jury 
found  a  verdict  for  "Wood,  the  plaintiff  below,  for  $54. 

Upon  the  return  of  the  certiorari,  a  rule  was  taken  upon  the 
justice  to  certify  certain  facts.  In  his  return  to  this  rule  the  jus- 
tice certified — 1.  That  the  plaintiff  below,  Wood,  claimed  title 
to  200  cords  of  wood,  the  property  in  dispute,  under  a  bill  of 
sale  made  by  Peter  Barber  to  him,  bearing  date  1st  July,  1820; 
that  the  bill  of  sale  was  proved  to  have  been  executed  on  the 
day  it  bore  date ;  and  that  a  sum  of  money  was  paid  for  the  same, 
but  does  not  remember  that  any  delivery  of  said  wood  was  proved 
to  have  been  made  to  the  plaintiff  below.  2.  That  the  defend- 


156  NEW  JERSEY  SUPEEME  COURT. 

Chumar  v.  Wood. 

ant  below  claimed  the  property  in  dispute  under  a  bill  of  Bale 
from  Peter  Barber  to  the  Rev.  John  Croes,  duly  executed,  for 
a  lawful  consideration,  accompanied  by  a  delivery  of  a  part,  and 
bearing  date  the  10th  July,  1820. 

After  the  execution  of  both  these  bills  of  sale,  the  wood  was 
levied  upon  as  the  property  of  Peter  Barber,  and,  by  his  direc- 
tion, sold.  Peter  B.  Wood  was  present  at  this  sale,  and  did  not 
forbid  it,  but  bought  the  wood  at  twenty-five  cents  per  cord. 

Wall  said,  that  the  first  bill  of  sale  to  Wood,  under  which  he 
claimed  the  wood,  was  fraudulent,  because  possession  did  not 
accompany  or  follow  it.  But  Barber  being  permitted  to  remain 
in  possession  of  the  wood,  and  afterwards  selling  it  for  a  valua- 
ble consideration  to  a  bona  fide  purchaser,  without  notice,  such 
subsequent  purchaser  would  be  entitled  to  hold  it.  He  took  the 
law  to  be  well  settled,  at  this  day,  that  a  conveyance  of  chattels 
unaccompanied  by  possession  was  absolutely  void. 

Br  THE  COURT.  There  is  no  doubt  but  that  is  the  law.  Take 
a  reversal. 

NOTE. — That  a  conveyance  of  chattels  unaccompanied  with  possession  is 
void.  See  Reed  v.  Blades,  5  Taunt.  212.  Edwards  v.  Harbin,  2  Term.  Rep. 
587.  Meeker  et  al.  v.  Wilson,  1  Oallison's  Rep.  419.  1  Oranch  309. 

CITID  IH  Hall  v.  SnowUll,  2  Or.  8.    Shreve  v.  Miller,  5  Dutch.  254.    Runytn 
V.  Qroshon,  1  Beat.  89. 


CASES  DETERMINED 


15  THE 


OP  THE 


STATE   OF    NEW   JERSEY, 

t 

AT  MAY  TERM,  1822. 


NA,  IAN  SQUIER,  JOSEPH  PIERSON,  CALEB  DURAND,  JOB  CKOW 
ELL,  and  JAMES  CROWELL,  appellees,  against  THOMAS  P. 
appellant. 


1.  Though  a  mandamus  will  lie  to  an  inferior  court  to  command  the  jr 
thereof  to  proceed  to  judgment,  yet  it  will  not  lie  to  command  them  tc  ur.» 
ceed  to  any  particular  judgment,  and  much  less  to  command  them  to  set  asioe 
a  verdict  and  grant  a  new  trial,  or  even  to  grant  a  rule  to  shew  cause  for  tbnt 
purpose. 

2.  Courts  of  Common  Pleas  have  a  right  to  set  aside  verdicts  and  to  grant 
new  trials,  and  they  have  this  right,  as  well  in  cases  of  appeals  under  statute  as 
in  other  cases. 

This  cause  was  originally  tried  in  the  court  for  the  trial  of 
small  causes,  and  judgment  rendered  for  the  appellees,  upon  the 
verdict  of  a  jury.  An  appeal  was  then  taken  to  the  Common 
Pleas  of  the  county  of  Essex,  where  the  cause  was  again  tried 
before  another  jury,  and  a  verdict  rendered  in  favour  of  the  ap- 
pellant. After  the  rendering  of  the  verdict,  and  before  the  judg- 
ment was  given  thereon  by  the  court,  a  motion  was  made  on  be- 
half of  the  appellees,  for  a  rule  to  shew  cause  why  a  new  trial 
should  not  be  had  on  the  said  appeal,  which  rule  the  Court  oi 
Common  Pleas  refused  to  grant,  and  alleged,  as  a  reason  for 
such  refusal,  that  they  had  no  authority  in  the  law  to  grant  such 
rule,  and  order  a  new  trial  in  case  of  an  appeal. 

Halsey,  at  the  last  term,  obtained  a  rule  upon  the  Court  <  f 
Common  Pleas  to  shew  cause,  on  the  first  day  of  this  term,  wly 

(157) 


153  NEW  JERSEY  SUPREME  COURT. 

Squier  v.  Gale. 

a  mandamus  should  not  issue,  commanding  them  to  grant  a  rule 
to  shew  cause  why  a  new  trial  should  not  be  had  in  the  case  of 
the  appeal  aforesaid,  and  proceed  to  hear  the  party  appellee 
upon  the  said  rule.  To  this  rule  the  Court  of  Common  Pleas 
made  the  following  return :  "  The  judges  of  the  Inferior  Court 
of  Common  Pleas  in  and  for  the  county  of  Essex,  in  compliance 
with  a  rule  of  the  Supreme  Court,  a  copy  whereof  is  hereunto 
annexed,  do  respectfully  state  to  the  said  Supreme  Court  and 
the  justices  thereof,  that  after  the  trial  of  the  said  cause,  in  the 
said  annexed  rule  mentioned,  between  Thomas  P.  Gale  appel- 
lant, and  Nathan  Squier,  Joseph  Pierson,  Caleb  Durand,  Job 
Crowell,  and  James  Crowell,  appellees,  in  the  Inferior  Court  of 
Common  Pleas  in  and  for  the  county  of  Essex,  by  a  jury  of  the 
county,  and  in  which  the  said  jury  found  a  verdict  for  the 
said  appellant  against  the  said  appellees,  the  counsel  for  the 
said  appellees  applied  to  this  court  for  a  rule  to  shew  caUBO  why 
a  new  trial  should  not  be  granted,  on  the  sole  ground,  that  the 
verdict  was  rendered  contrary  to  the  evidence  in  the  cause; 
whereupon  the  said  inferior  court  took  into  consideration  the 
question  whether  it  had  power  to  grant  new  trials  in  such  cases? 
and  upon  examination  of  the  act  of  the  legislature,  in  that  case 
made  and  provided,  and  not  finding  therein  any  authority  con- 
ferred on  this  court  to  grant  new  trials  in  such  cases,  and  con- 
ceiving it  contrary  to  general  principles  for  the  court  to  exercise 
the  power  of  granting  new  trials  in  such  cases,  without  special 
legislative  authority  to  do  so,  this  court,  in  the  cause  in  the  an- 
nexed rule  mentioned,  refused  to  grant  a  rule  to  shew  cause, 
inasmuch  as  it  would  only  tend  to  consume  the  time  of  the  court 
and  create  expense  to  the  parties,  without  any  beneficial  result, 
according  to  the  opinion  which  had  been  formed  of  the  power 
of  the  court  before  stated,  all  which  is  respectfully  submitted  to 
the  Supreme  Court." 

Opinion  of  the  court  by  the  Chief  Justice. 

KIRKPATRICK  C.  J.  In  this  case  the  court  are  of  opinion — 
1.  That  though  a  mandamus  will  lie  to  an  inferior  court  to  com- 
mand them  to  proceed  to  judgment,  yet  it  will  not  Ho  to  com- 
mand them  to  proceed  to  any  particular  judgment ;  and  much  less 
to  command  them  to  set  aside  a  verdict  and  grant  a  new  trial,  or 
even  to  grant  a  rule  to  shew  cause  for  that  purpose. 


MAY  TERM,  1822.  159 


Kennedy  v.  Nixon. 


2.  That  the  Courts  of  Common  Pleas  have,  by  the  constitu- 
tion of  the  said  courts,  and  by  the  principles  of  the  ancient  com- 
mon law,  a  right  to  set  aside  verdicts  and  grant  new  trials;  and 
that  they  have  this  right,  as  well  in  cases  of  appeal  under  statute 
as  in  other  cases. 

CITED  IN  Baldwin  v.  Simmons,  4  Hal.  196.  Cortelyou  v.  Ten  Eyck,  2  Zab.  46. 
Van  Waqgener  v.  Coe,  1  Dutch  197.  State  v.  Common  Pleas  oj  Pas- 
saic,  9  Vr.  184.  Benedict  v.  Howell,  10  Vr.  223. 


ANONYMOUS. 

PRACTICE. 

Service  of  notice  of  amercement  on  the  sheriff  must  be  a  personal  service. 

WALL  moved  to  amerce  the  sheriff  of  Cumberland,  and  read 
an  affidavit  of  sending  a  venditioni  and  notice  of  this  motion,  by 
mail,  to  the  sheriff. 

Per  curiam.  There  must  be  proof  of  personal  service  of  the 
notice  on  the  sheriff.  Proof  of  notice  sent  by  mail  is  not  suffi- 
cient; and,  therefore,  we  cannot  grant  your  motion. 


KENNEDY  against  NIXON. 

Where  the  defendant  puts  off  a  cause  upon  affidavit,  he  will  not  be  compelled 
to  pay  the  costs  of  striking  a  jury  which  haa  been  summoned  on  a  rule  of  the 
plaintiff  for  that  purpose.  « 

This  cause  was  noticed  for  trial  at  the  last  Hunterdon  cir- 
cuit. The  plaintiff  had  obtained  a  rule  for  a  struck  jury;  this 
jury  had  been  summoned,  and  attended.  The  defendant  put  off 
the  cause  upon  affidavit  of  the  absence  of  a  material  witness. 

Ewing  said,  that  upon  the  taxation  of  the  bill  of  costs  of  the 
term,  a  question  had  arisen,  whether  the  plaintiff  was  entitled  to 
the  costs  of  striking  the  jury?  He  thought  that  where  the  cause 
was  put  off  by  the  defendant,  without  any  neglect  on  the  part  of 
the  plaintiff,  that  the  plaintiff  ought  to  be  completely  indemni- 
fied, and,  therefore,  ought  to  be  paid  the  costs  he  had  been  put 
to  in  striking  the  jury. 

KIRKPATRICK  C.  J.  said,  the  plaintiff  could  only  recover  the 
costs  to  which  he  is  entitled  by  law.  The  statute  (Pat.  261,  sec. 
16)  enacts,  that  the  party  applying  for  a  struck  jury  "shall  pay 


160  NEW  JERSEY  SUPREME  COURT. 

Woodward  v.  Cook. 

the  fees  for  striking  the  same,  and  shall  not  have  any  allowance 
therefor  upon  the  taxation  of  costs."  He  did  not  see,  therefore, 
how  they  could  tax  it. 

ROSSELL  J.  thought  the  act  of  assembly  was  a  bar  to  the 
plaintiff's  claim  to  these  costs. 

FORD  J.   I  think  the  defendant  ought  to  pay  it.   The  plaintiff 
ought  to  be  indemnified  for  the  expense  he  has  been  put  to. 
Costs  of  striking  jury  not  allowed. 


APOLLO  WOODWARD,  at  the  suit  of  JOSEPH  COOK,  assignee  of  J.  Shinn 

The  affidavit  required  under  the  5th  section  of  the  act  directing  the  mode  cr 
entering  judgments  on  lands  with  warrants  of  attorney,  must  state  the  comid 
cration  of  the  bond,  and  it  is  not  sufficient  to  state  the  consideration  of  the  assign 
mmt  of  the  bond  only. 

This  was  a  rule  to  shew  cause  why  the  judgment  and  exe 
cution  in  this  cause  should  be  set  aside.  This  judgment  wab 
entered  upon  a  bond  and  warrant  of  attorney  under  the  act 
"directing  the  mode  of  entering  judgments  upoa  bonds  with  war- 
rant of  attorney  to  confess  judgments,"  passed  24th  Februaiy, 
1820.  The  affidavit  made  and  filed  in  pursuance  of  the  5th  section 
of  the  act  was  as  follows :  "A.  B.  attorney  for  Joseph  Cook,  being 
duly  sworn,  doth  declare  and  say,  that  Apoljo  Woodward  is  justly 
indebted  to  the  said  Joseph  Cook,  as  this  deponent  verily  believes, 
in  the  sum  of  thirteen  hundred  dollars,  on  a  bond  accompanied 
by  a  warrant  of  attorney  to  confess  judgment,  whereof  the 
foregoing  are  true  copies.  That  the  consideration  of  the  assign- 
ment of  the  said  bond  to  said  Joseph  Cook  is,  as  this  deponent 
believes,  for  money  paid  to  the  said  Joseph  Shinn,  the  obligee 
therein  mentioned ;  and  this  deponent  verily  believes  the  said 
sum  of  money  to  be  justly  due  and  owing  to  the  said  Joseph 
Cook  from  the  said  Apollo  Woodward,  and  that  judgment  is  not 
confessed  on  the  said  obligation,  by  virtue  of  the  warrant  there- 
unto annexed,  to  answer  any  fraudulent  purpose,  or  to  protect 
the  property  of  the  defendant  from  his  creditors." 

Armstrong  moved  to  set  aside  this  judgment,  on  account  of  the 
insufficiency  of  the  affidavit.  The  affidavit,  he  said,  was  not  in 
conformity  with  the  provisions  of  the  act.  By  the  5th  section,  it 


MAY  TERM,  1822.  161 


Kingsland  v.  Gould. 


was  enacted,  "that  no  judgment  shall  be  entered  on  a  bond  or 
obligation  and  warrant  of  attorney  to  confess  judgment  thereon, 
unless  the  plaintiff  or  his  attorney  shall  produce,  at  the  time  of 
confessing  such  judgment  to  the  court,  justice,  or  judge,  before 
whom  such  judgment  shall  be  confessed,  an  affidavit  of  the  plain- 
tiff, his  attorney,  or  agent,  stating  therein  the  true  consideration 
of  the  said  bond  or  obligation,  and  that  the  debt  for  which  judg- 
ment is  confessed  is  justly  due,"  &c.  Now  this  affidavit  does  not 
state  consideration  of  the  bond,  but  merely  the  consideration  of 
the  assignment  of  the  bond,  and  was,  therefore,  not  a  compliance 
with  the  words  of  the  act. 

Per  curiam.    Let  the  rule  setting  aside  the  judgment  be  made 
absolute. 
CITED  IK  Beading  v.  Reading,  4  Zab.  364.     Cfappv.  Ely,  3  Dutch.  569-589. 


HENRY  KINGSLAND  agaimt  WILLIAM  GOULD,  JOHN  DOD,  RICH- 
ARD OUTWATER,  NATHAN  SQUIER,  and  JOSEPH  T.  BALDWIN. 

ON  CERTIOEAEI. 

1.  The  obtaining  an  injunction  ont  of  Chancery  to  prevent  commissioners 
proceeding  in  a  certain  matter,  does  not  deprive  the  party  of  his  remedy  in  this 
court  by  certiorari. 

2.  There  being  a  court  of  appeal  does  not  prevent  the  proceedings  of  the 
inferior  court  from  being  brought  before  the  Supreme  Court  by  certiorari, 

3.  A  cerliorari  operates  as  a  supersedeas,  and  the  court  below  cannot  proceed 
after  the  certiorari  is  granted. 

This  was  a  certiorari  issued  out  of  the  Supreme  Court  to  bring 
up  the  proceedings  of  commissioners  appointed  by  "An  act  sup- 
plementary to  an  act  passed  on  the  twentieth  day  of  January, 
eighteen  hundred  and  eighteen,  entitled  an  act  to  authorize 
Edmund  William  Kingsland,  Jacob  Van  Winkle,  and  others, 
their  heirs  and  assigns  for  ever,  to  erect  and  maintain  a  dam, 
sluices,  and  floodgates  across  Kingsland  creek,  and  such  other 
water-works  as  they  may  think  necessary,  in  the  township  of 
New  Barbadoes,  in  the  county  of  Bergen,  to  improve  their  salt 
marsh  or  meadows,"  and  a  supplement  thereto  passed  the  four- 
teenth day  of  January,  eighteen  hundred  and  nineteen. 

Pennington  moved  to  set  aside  the  certiorari  guia  improvide 
emanavit.  He  contended,  that  no  certiorari  lay,  in  this  case,  to 
the  commissioners.  1.  Because,  by  the  4th  section  of  the  act,  it 
was  provided,  that  in  case  of  any  dissatisfaction  on  the  part  of 

VOL.  i.  L 


102  NEW  JERSEY  SUPREME  COURT. 

Kingaland  v.  Gould. 

either  of  the  proprietors,  in  consequence  of  assessments,  such 
proprietor  might  apply  to  the  commissioners  of  appeal  of  New 
Barbadoes  and  Bergeu,  who  were  constituted  a  court  of  appeal 
to  take  cognizance  of  such  application.  That  the  legislature  had 
provided  this  domestic  tribunal  for  the  purpose  of  settling  these 
matters,  and,  therefore,  this  court  could  not  interfere.  2.  That 
Henry  Kingsland,  previous  to  the  issuing  of  this  certiorari,  had 
filed  a  bill  in  Chancery  to  set  aside  the  proceedings  of  these 
commissioners.  The  chancellor  granted  an  injunction,  and,  upon 
the  coming  in  of  the  commissioners,  the  injunction  was  dissolved. 
The  plaintiffs  then  took  no  steps  in  their  Chancery  cause,  but 
come  into  this  court  and  obtain  a  certiorari  to  bring  up  the  pro- 
ceedings of  the  commissioners,  and  the  same  reasons  are  filed 
substantially  as  are  stated  in  the  bill.  He  then  offered  to  read 
the  bill  in  Chancery,  to  shew  that  the  facts  were  as  ho  stated. 

Chetwood,  contra,  objected  to  his  reading  the  bill ;  because  he 
had  no  right  to  enter  into  the  proceedings  of  another  court  on 
this  motion  to  quash.  Besides,  the  motion  itself  was  too  late ; 
it  should  have  been  made  at  the  last  term,  (the  term  when  the 
writ  was  returned). 

KIRKPATRICK  C.  J.  Is  there  any  case  where  you  can  make 
ftn  application  of  this  kind,  after  the  term  to  which  the  writ  is 
returned  ?  If  the  application  to  quash  is  merely  for  irregularity, 
it  should  have  been  made  at  the  term  the  writ  was  returned. 

Frelinghuysen,  attorney-general,  on  the  same  side  with  Pcnn- 
ington,  said,  that  the  reason  relied  on  was  not  irregularity  mere- 
ly;  but  that  there  was  another  tribunal  before  which  this  action 
was  pending,  and  that  this  court  had  no  jurisdiction  of  it,  upon 
the  principle/ that  wherever  there  was  a  decision  before  a  court 
of  competent  jurisdiction  it  was  conclusive  upon  the  point. 

Chetwood.  The  gentlemen,  for  their  first  point,  rely  upon  the 
4th  section  of  the  statute.  The  first  reason  assigned  was  not  con- 
fined to  the  assessment.  But  even  if  it  was,  yet  he  contended,  that 
though  an  appeal  was  given  it  did  not  take  away  the  right  of  a 
party  to  bring  a  certiorari,  and  unless  the  certiorari  was  expressly 
taken  away  by  the  statute,  the  party  could  not  be  deprived  of 
the  benefit  of  this  writ.  Doug.  555,  note.  Black.  Rep.  231.  Be- 
fore our  late  act  for  the  trial  of  small  causes,  although  an  appeal 


MAY  TEEM,  1822.  163 


Kingsland  v.  Gould. 


lay  to  the  Common  Pleas,  yet  a  certiorari  would  also  lie,  and  was 
frequently  brought. 

The  second  objection  is,  that  the  party  was  proceeding  in  the 
Court  of  Chancery.  This  assessment  was  made  out  by  the  com- 
missioners. They  were  proceeding,  and  actually  had  advertised 
to  sell,  and  would  have  sold  it  before  a  certiorari  could  issue, 
because  there  was  no  court  sitting  to  whom  the  party  could 
apply,  and,  therefore,  he  was  obliged  to  apply  to  Chancery  for 
an  injunction,  and  it  was  upon  that  ground  alone  that  it  was 
allowed,  because  the  chancellor  said  he  had  no  jurisdiction  of  the 
cause,  and  granted  it  only  for  the  reason  that,  if  it  was  not  granted, 
the  property  might  be  sold  before  the  party  could  have  any  redress. 

But  this  court  is  asked  to  set  aside  the  supersedeas,  if  they 
will  not  the  certiorari.  But  the  court  would  not  do  it  where  a 
man's  freehold  was  in  question.  If  the  court  think  proper  to  sus- 
tain the  certiorari,  will  they,  during  the  pendency  of  the  suit, 
permit  the  property  to  be  sold.  If  they  do  set  aside  the  super- 
sedeas, and  the  property  is  sold,  and  the  proceedings  should  be 
determined  illegal,  how  could  the  property  be  got  back  again  ? 
If  there  had  been  no  supersedeas  this  court  would  have  granted 
a  rule  to  stay  the  sale. 

Southard.  This  is  a  motion  with  a  double  aspect — first,  to  get 
rid  of  the  certiorari;  second,  of  the  supersedeas. 

1.  It  was  said,  that  an  application  had  been  made  to  Chancery, 
and  the  bill  had  been  dismissed;  the  principle,  as  to  decisions  of 
concurrent  jurisdiction,  did  not  apply;  the  question  was,  whether 
this  court  could  be  deprived  of  the  exercise  of  its  jurisdiction 
because  there  were  proceedings  in  Chancery.  If  there  be  pro- 
ceedings in  two  courts  of  concurrent  jurisdiction,  the  proceed- 
ings in  one  will  not  arrest  the  proceedings  in  the  other,  until 
there  has  been  a  decision.  But  the  Court  of  Chancery  had  no 
jurisdiction  in  this  case;  it  could  have  no  jurisdiction  in  these 
cases  but  upon  two  grounds:  first,  to  prevent  an  enormous  evil; 
second,  where  there  is  no  remedy  at  common  law.  I  apply  to  a 
court  that  has  no  jurisdiction,  and  can  get  no  redress.  I  then 
apply  to  a  court  which  has  jurisdiction ;  shall  I  be  told  I  have  made 
an  application  to  the  court  which  has  no  jurisdiction ;  that,  there- 
fore, the  court  which  has  jurisdiction  will  give  me  no  redress? 
But  the  application  was  made  to  Chancery,  only  until  we  could 
apply  to  this  court.  The  application  there  was  only  for  tempo- 


164  NEW  JERSEY  SUPREME  COURT. 

Kingsland  v.  Gould. 

rary  relief;  but  the  application  here  is  of  a  more  permanent 
character. 

The  second  objection  is,  that  there  is  an  apcal  to  another  tri- 
bunal, and  that,  therefore,  this  court  has  no  power  to  issue  the 
writ  of  certiorari.  No  such  appeal  ever  can  take  from  this  court 
the  right  to  issue  its  certiorari.  The  power  to  issue  this  writ  is 
an  original  power,  inherent  in  this  court,  and  cannot  be  destroyed^ 
because  an  appeal  is  given  to  another  tribunal :  if  it  could  thero 
would  be  some  case  to  be  found  upon  the  subject,  and  none  has 
been  cited.  This  power  can  never  be  taken  away  except  by 
express  negative  words.  In  cases  of  roads,  this  court  will  direct 
their  certiorari  to  the  surveyors  or  freeholders,  or  Common  Pleas 

Is  the  appellate  jurisdiction  of  the  Common  Pleas  of  Bergen 
to  correct  the  illegality  of  the  proceeding?  No!  they  only  inquire 
into  the  justice  and  propriety  of  the  proceedings ;  the  act  speaks 
only  of  assessment;  the  Court  of  Common  Pleas  are  to  look  into 
the  extent,  injustice,  and  inequality  of  the  assessment,  and  not 
into  the  legality  of  the  proceedings. 

With  regard  to  the  supersedeas,  the  certiorari  is  in  itself  a  super- 
sedeas, and  they  ought  to  have  stopped  their  proceedings  upon 
receiving  the  certiorari,  and  the  supersedeas  is  a  mere  notice  to 
tell  them  you  have  not  stopped  under  certiorari,  and  if  you  do 
not  now  stop  you  will  make  yourselves  liable. 

KIRKPATRICK  C.  J.  said,  there  is  no  doubt  that  a  certiorari  is  a 
supersedeas. 

Southard.  It  is  a  very  extraordinary  course  of  argument  to  say, 
because  we  disregarded  your  first  writ,  therefore  you  are  to  set 
aside  your  second  writ. 

Frelinghuysen  said,  the  court  would  perceive  the  act  was  made 
to  improve  a  meadow.  2d  sec.  of  the  act  passed  1820.  The  legis- 
lature intended  to  vest  in  the  commissioners  some  serious  powers. 
This  was  a  neighborhood  concern,  and  the  legislature  intended 
to  create  a  domestic  tribunal. 

It  is  said,  this  appellate  court  had  no  authority  to  review  the 
proceedings  of  commissioners,  except  as  to  the  assessment ;  but 
all  the  important  reasons  filed  regard  the  assessment.  Now,  if 
Mr.  Kingsland  was  bound  to  submit  to  this  assessment,  then  all 
these  reasons  must  be  struck  out. 

The  bill  prays  for  full  equitable  relief.    It  will  not  answer  for 


MAY  TEEM,  1822.  165 


Kingsland  v.  Gould. 


the  gentleman  to  say,  that  the  only  object  of  the  bill  was  to  pray 
an  injunction  until  they  could  obtain  redress  from  the  Supreme 
Court.  It  is  said,  the  Court  of  Equity  possessed  jurisdiction  to 
grant  the  injunction,  but  no  farther.  This  suit  is  now  pending 
in  Chancery,  and  Mr.  Kingsland  can  there  obtain  all  the  redress 
that  the  Supreme  Court  can  give.  The  bill  in  Chancery  was 
filed  merely  to  delay  the  proceedings,  and  after  the  answer  comes 
in,  he  abandons  that  court  and  applies  to  a  judge  of  this  court 
for  a  similar  writ  in  substance. 

Suppose  he  had  fii*st  obtained  a  supersedeas,  and,  upon  the  inves- 
tigation, the  supersedeas  had  been  set  aside  or  dismissed,  could  he 
then  have  gone  to  Chancery  for  an  injunction  ?  I  apprehend  not. 
No!  the  decision  of  a  concurrent  jurisdiction  directly  upon  the 
point,  is  conclusive,  wherever  the  matter  comes  before  another 
court  of  concurrent  jurisdiction.  The  case  from  1  Black,  shews  that 
the  certiorari  would  be  irregular  if  interposed  between  the  origi- 
nal and  appellate  jurisdiction.  Here  the  certiorari  was  directed 
to  Common  Pleas,  the  appellate  court,  and  not  to  the  justice. 

I  do  not  mean  to  contend,  that  the  statute  takes  away  the  author- 
ity of  this  honourable  court,  but  submit,  that,  after  what  has  taken 
place  in  Chancery,  Mr.  Kingsland  is  barred  of  any  farther  remedy. 
But,  at  all  events,  the  supersedeas  cannot  be  maintained.  The 
certiorari  can  be  granted  only  in  term  time.  Can  a  party  go  to 
a  judge,  ex  parte,  in  vacation,  and,  upon  his  own  statement,  obtain 
a  supersedeas  f  The  certiorari  was  no  supersedeas;  it  was  a  mere 
writ  requiring  them  to  send  up  a  certificate  of  what  they  had  done. 

Per  curiam.  We  are  of  opinion,  that  the  proceedings  in  Chan- 
cery have  no  effect  on  this  court;  and  notwithstanding  there  is 
an  intermediate  court  of  appeal  created  by  the  statute,  (see  sec- 
tion 4)  as  to  the  mere  assessment,  yet  the  party  may  bring  his 
certiorari.  It  is  a  privilege  similar  to  that  which  is  allowed  upon 
proceedings  in  the  courts  for  the  trial  of  small  causes,  you  may 
take  the  appeal  and  bring  the  certiorari  also.  We  shall,  there- 
fore, retain  the  certiorari. 

The  certiorari  is  itself  a  supersedeas.  The  court  below  cannot 
proceed  after  the  certiorari  is  granted ;  it  would  defeat  the  whole 
object  of  the  measure.  The  supersedeas  is  a  cautionary  measure, 
and,  as  the  certiorari  is  sustained,  must  remain  in  force. 

CITED  is  N.  J.  R.  R.  &  Tr.  Co.  v.  Suydam,  2  Harr.  25.    Me  Williams  v.  King, 
3  Vr.  25.    State  v.  Cassidy,  9  Vr.  439. 


166  NEW  JERSEY  SUPREME  COURT. 

Anonymous. 

BENJAMIN  B.  ALLGOR  againtt  JOHN  STILLWELL. 

ON   CERTIORARI. 

In  an  action  for  a  malicious  prosecution,  unless  the  state  of  demand  set*  ont 
an  arrest  or  special  grievance  the  judgment  will  be  reversed. 

This  was  an  action  originally  commenced  before  a  justice  of 
the  peace,  by  John  Stillwell  against  Benjamin  B.  Allgor,  for  a 
malicious  prosecution.  The  state  of  demand  filed  with  the  jus- 
lice  was  as  follows :  "  The  plaintiff  demands  of  the  defendant  $15, 
for  fraudulently,  vexatiously,  and  maliciously  prosecuting  John 
Stillwell,  without  any  ground  of  action  whatever.  The  action 
was  brought  by  the  said  Benjamin  B.  Allgor,  against  the  said 
Stillwell,  before  T.  N.  esq.  at  J.  K's  tavern  in  H — ,  at  the  distance 
of  eighteen  miles;  the  summons  returnable  the  24th  November, 
1820;  the  action  in  trespass  on  the  case:  demand  $100.  To 
which  summons  I  was  obliged  to  attend.  Said  Allgor  then 
adjourned  the  trial,  and  called  a  jury,  and  I  again  had  to  attend. 
The  cause  was  tried  by  the  jury,  and  they  rendered  a  verdict 
for  the  defendant,  with  six  cents  costs,  for  which  malice  and 
abuse  I  was  compelled  to  attend  twice,  to  my  damage  815."  At 
the  trial  before  the  justice,  the  jury  found  a  verdict  in  favour  of 
Stillwell,  the  plaintiff.  From  this  judgment  Allgor  appealed  to 
the  Court  of  Common  Pleas,  who  affirmed  the  judgment.  This 
certiorari  was  then  brought. 

Wall  now  moved  to  reverse  this  judgment,  because  the  state 
of  demand  contained  no  legal  cause  of  action.  The  supposed 
malicious  suit  is  stated  to  have  been  commenced  by  summons; 
there  is  no  arrest  or  special  grievance  stated.  1  South.  330. 

BY  THE  COUBT.     Take  a  reversal. 


ANONYMOUS. 

A  writ  of  dower  cannot  be  amended  by  inserting  a  place  of  appearance, 
which  had  been  omitted. 

VROOM  moved  to  quash  a  writ  of  dower  for  informality,  be- 
cause there  was  no  place  mentioned  .in  the  writ  where  the  de- 
fendant was  to  appear.  The  writ  only  summoned  him  "to  appear 


MAY  TERM,  1822.  167 


Anonymous. 


before  the  justices  of  the  Supreme  Court"  without  saying  at  Tren- 
ton, or  designating  any  place  of  appearance. 

Ewing  contra,  contended,  that  the  writ  ought  not  to  be  quashed 
for  this  error ;  that  the  place  of  appearance  was  certain  enough  ; 
the  defendant  is  summoned  to  appear  before  the  justices  of  the 
Supreme  Court;  and  their  sitting  was  by  law  fixed  at  Trenton, 
and  according  to  the  maxim,  id  cerium  est  quod  cerium  reddi 
potest,  it  was  sufficient. 

KIRKPATRICK  C.  J.  Might  you  not  as  well  say,  that  you  need 
not  put  in  the  writ,  that  the  defendant  must  appear  "  before  the 
justices  of  the  Supreme  Court,"  because  by  law  there  must  be 
justices  of  the  Supreme  Court? 

Ewing.  I  think  I  can  find  authorities  to  shew  that  defects  as 
great  as  this  have  been  amended. 

KIRKPATRICK  C.  J.    Has  there  been  any  appearance  entered  ? 

Ewing.  No  sir. 

KIRKPATRICK  C.  J.    Take  a  little  time  to  look  into  it. 

At  a  subsequent  day  in  term,  Ewing  moved  to  amend  the 
writ,  and  laid  before  the  court  the  following  cases,  in  which,  he 
said,  amendments  had  been  made  of  as  much  importance  as  the 
one  he  now  applied  for.  5  John.  233,  Merrill  v.  Waggoner.  1 
Sel.  Prac.  100.  1  Black.  R&p.  454.  2  Ib.  918.  Com.  Dig.  title 
Amendment  46. 

KIRKPATRICK  C.  J.  We  have  uniformly  held  that  writs  issued 
out  of  this  court,  are  original  writs,  and,  that  they  cannot  be 
amended,  for  there  is  nothing  to  amend  by.  We  have  nothing 
in  our  practice  analagous  to  the  bill  of  Middlesex  in  England ; 
the  process  there  is  under  the  discretion  of  the  court.  The 
place  of  appearance  is  a  pretty  substantial  thing. 

EOSSELL  J.  I  am  for  allowing  the  amendment;  the  place  of 
return  is  fixed  by  law,  and  might  be  amended  by  the  law  itself. 

FORD  J.  This  is  a  pretty  strong  error.  If  there  was  an  ap- 
peai'ance  entered  in  the  cause,  I  should  not  be  so  .averse  to 
amending,  but  I  rather  think  the  precedent  would  establish  a 
loose  practice ;  therefore,  take  nothing  by  your  motion. 

Let  the  writ  be  quashed. 


168  NEW  JERSEY  SUPREME  COURT. 


v.  Dill. 


ROBERT  H.  PIERSON  against  WILLIAM  PIERSON. 

OH   CEETIOBABI. 

In  an  action  of  covenant,  it  must  appear  upon  the  state  of  demand  that  the 
instrument  upon  which  the  action  is  founded  is  a  sealed  instrument. 

This  was  an  action  of  covenant  in  which  a  judgment  had 
been  given  upon  the  verdict  of  a  jury,  for  William  Pierson,  the 
plaintiff  below,  against  Robert  H.  Pierson. 

Swing  now  moved  to  reverse  this  judgment,  because  the  state 
of  demand  did  not  allege  that  the  instrument  upon  which  the 
action  was  brought  was  a  sealed  instrument. 

KIRKPATRICK  C.  J.  Does  the  state  of  demand  set  out  an  in- 
strument of  writing  at  all? 

Swing.  No  sir ;  it  calls  it  "  articles  of  agreement" 

KIRKPATRICK  C.  J.  As  the  magistrate  is  obliged  to  set  down 
the  cause  of  action,  he  must  set  down  the  real  style. 

FORD  J.  An  action  of  covenant  cannot  be  maintained,  except 
on  a  deed. 

Per  curiam.  Take  a  reversal. 

CITED  IH  Sayret  v.  Inhabitants  of  Springfield,  3  Hal.  206. 


•       against  DILL. 

Rale  to  plead  must  be  served  on  defendant's  attorney,  though  he  was  in 
court  when  the  rule  was  taken. 

EWINO  took  a  rule  upon  the  defendant,  at  the  last  term,  to 
plead  in  thirty  days.  The  defendant  having  failed  to  plead,  he 
now  moved  for  judgment  against  him  by  default. 

KIRKPATRICK  C.  J.  You  are  not  entitled  to  judgment ;  you 
do  not  state  that  you  served  the  rule  upon  the  defendant's  at- 
torney. 

Swing.  The  defendant's  attorney  was  in  court  at  the  time  the 
motion  was  made,  and  knew  of  it. 

Per  curiam.  We  are  all  of  opinion,  that  a  service  of  the  rule 
is  necessary,  and  even  if  the  defendant's  attorney  is  in  court 
when  the  motion  is  made.  We  cannot  enter  into  an  examina- 
tion, whether  he  was  in  court  or  not.  Besides,  he  might  have 
been  engaged  at  the  time,  and  not  have  heard  it. 

Motion  denied. 


CASES   DETERMINED 


THE 


SUPREME  COURT  OF  JUDICATURE 


OF  THE 


STATE   OF    NEW   JERSEY, 

AT  SEPTEMBER  TERM,  1822. 


THE  OVERSEERS  OF  THE  POOR  OF  THE  TOWNSHIP  OF  HOPE- 
WELL  against  THE  OVERSEERS  OF  THE  POOR  OF  THE  TOWN- 
SHIP OF  AMWELL. 

ON  CEETIORARI. 

A  service,  under  an  instrument  to  which  there  was  affixed  no  seal  of  wax  or 
wafer,  but  only  a  scroll  or  scribble  by  way  of  seal,  is  not  such  a  serving  of  an 
apprenticeship  under  indenture  as  will  gain  a  settlement  under  the  act  for  the 
"  settlement  and  relief  of  the  poor." 

This  was  a  certiorari  to  the  Court  of  Quarter  Sessions  of  the 
county  of  Hunterdon.  The  facts  in  this  cause  fully  appear  by 
the  state  of  the  case  sent  up  to  this  court  by  the  Quarter  Ses- 
sions, in  return  to  the  certiorari,  which  is  as  follows: — 

"John  Carr  and  Jacob  I.  Young,  esquires,  two  of  the  justices  of 
the  peace  in  and  for  the  county  of  Hunterdon,  made  their  order 
for  the  removal  of  Christian  Brooks,  and  two  children  (the  one 
a  male,  and  the  other  a  female,  aged  about  one  month  and 
twenty-one  days)  from  the  township  of  Amwell  to  the  township 
of  Hopewell,  which  order  of  removal  is  hereto  annexed;  under 
which  order  they  were  removed  to  the  said  township  of  Hope- 
well,  from  which  the  said  overseers  of  the  poor  of  the  township 
of  Hopewell  appealed  to  the  General  Quarter  Sessions  of  the 
Peace  of  the  county  of  Hunterdon,  which  appeal  came  on  to  bo 
heard  before  the  said  court  in  the  sessions  of  February,  in  the 

(169) 


170  NEW  JERSEY  SUPREME  COURT. 

Overseers  of  Poor  of  Hopewell  v.  Overseers  of  Poor  of  Amwell. 

year  of  our  Lord,  one  thousand  eight  hundred  and  twenty ;  and 
it  was  thereupon  testified  by  Mary  Stackhouse,  a  witness  pro- 
duced on  the  part  of  Amwell,  and  sworn,  that  she  is  the  mother 
of  the  said  Christian  Brooks,  who  will  be  twenty-two  years  old 
on  the  fourteenth  day  of  the  present  month ;  that  she  served  with 
Nehemiah  Saxton,  in  Hopewell ;  that  witness,  having  no  husband 
at  the  time,  herself  bound  said  Christian  to  said  Saxton,  in 
August,  eighteen  hundred  and  ten,  to  serve  until  she  should  be 
eighteen  years  of  age;  that  witness  and  said  Christian,  her 
daughter,  executed  an  indenture  to  the  said  Saxton ;  that  there 
•was  only  one  indenture,  which  was  kept  by  said  Saxton ;  that  the 
said  Christian  remained  with  said  Saxton  until  she  was  fourteen 
years  aud  six  months  old,  under  the  indenture ;  that  she  was  there 
three  years  and  a  half;  that  it  was  mentioned  in  the  indenture  that 
she  was  to  serve  six  years  and  six  months;  that  said  Saxton  is 
not  now  living;  that  said  Christian  was  to  learn  to  do  all  kinds  of 
work  that  a  girl  ought  to  do;  that  the  indenture  was  drawn  by 
Joab  Saxton,  son  of  said  Nehemiah ;  that  the  binding  of  the  girl 
was  at  the  request  of  the  said  Nehemiah  Saxton,  with  whom  she 
had  lived  before  she  was  bound.  And  being  cross-examined  on 
the  part  of  Hopewell,  the  said  Mary  testified,  that  when,  she  says, 
she  and  her  daughter  executed  the  said  indenture,  she  means 
that  she  and  her  daughter  signed  it;  that  witness  lived  at  Read- 
ington  at  the  time,  and  said  Christian  is  a  bastard.  And  being 
examined  again,  on  the  part  of  Amwell,  she  testified,  that  the 
said  Joab  Saxton  was  a  witness  to  the  said  indenture;  that  she 
did  not  recollect  who  called  on  her  to  execute  it;  that  she 
acknowledged  it  to  be  her  hand  and  seal,  and  her  daughter,  the 
said  Christian,  did  the  same;  that  the  said  indenture  was  read 
over  to  them,  and  that  she  made  a  mark,  but  did  not.  write  her 
name.  And  it  was  further  testified  by  the  said  Christian  Brooks, 
a  witness  produced  on  the  part  of  Amwell,  and  sworn,  that  she 
served  with  Nehemiah  Saxton,  in  Hopewell,  for  three  years  after 
she  was  bound ;  that  she  was  bound  by  her  mother,  and  had  lived 
there  about  five  months  before;  that  she,  the  witness,  signed  the 
indenture;  that  she  does  not  recollect  to  have  seen  or  signed 
more  than  one,  which  was  left  with  the  said  Nehemiah  Saxton; 
that,  by  the  indenture,  she  was  to  servo  until  she  was  eighteen 
years  of  age ;  that  the  said  indenture  was  read  to  them ;  that  she 
left  said  Saxton  before  her  time  was  out;  that  he  sent  her  away, 


SEPTEMBER  TEEM,  1822.  171 

Overseers  of  Poor  of  Hopewell  v.  Overseers  of  Poor  of  Amwell. 

and  she  went  to  her  mother's,  and  has  not  been  bound  out  since; 
and  being  cross-examined  by  Hopewell,  she  said  she  made  a 
cross,  and  could  not  read  nor  write  at  the  time.  And  it  was  far- 
ther testified  by  Joab  Saxton,  a  witness  produced  on  the  part  of 
Amwell  and  sworn,  that  he  was  called  on  to  write  an  indenture 
between  these  people  and  his  father,  the  said  Nehemiah  Saxton, 
who  is  now  dead ;  that  the  said  indenture  was  delivered  to  his 
father,  and  is  now  lost ;  that  said  Christian  was  to  serve  until  she 
became  eighteen  years  of  age,  and  did  serve  about  three  years, 
and  had  lived  with  his  father  some  time  before,  and  that  his 
father  lived  in  Hopewell.  And,  being  cross-examined  on  the  part 
of  Hopewell,  he  testified,  that  he  drew  the  writing  in  question, 
and  there  was  but  one;  that  he  was  present  at  the  time  it  was 
signed,  and  was  a  subscribing  witness;  that  there  was  no  seal  of 
wax  pr  wafer  to  the  said  writing ;  that  there  was  a  scribble  made 
with  a  pen ;  that  there  was  no  stipulation  in  the  said  writing, 
that  the  said  Christian  should  be  taught  anything  by  his  father; 
that  he  drew  it  from  an  old  printed  indenture,  and  left  out  all 
that  part  which  relates  to  teaching  any  thing;  that  his  father 
was  to  give  her  a  quarter's  schooling  and  a  freedom  suit.  And 
being  again  examined  on  the  part  of  Amwell,  he  testified,  that 
about  seven  years  ago  he  had  occasion  to  look  at  the  said  inden- 
ture, since  which  he  had  not  seen  it ;  that  it  was  stated  in  it 
that  she  was  to  serve  as  an  apprentice;  and  that  he  thought 
that  the  parties  did  not  acknowledge  their  hands  and  seals ;  at 
the  time,  he  did  not  know  much  of  the  manner  in  which  writings 
should  be  drawn." 

Upon  the  foregoing  evidence,  the  cause  was  put  to  the  Court 
of  Quarter  Sessions,  and  after  argument  of  the  counsel  of  the 
parties,  the  said  court  did  affirm  the  said  order  of  removal,  with 
costs:  whereupon  the  counsel  on  the  part  of  the  appellants  did 
pray  of  the  court  a  state  of  the  case,  and  thereupon  the  forego- 
ing state  of  the  case  is  stated,  signed  and  sealed. 

This  cause  was  argued  at  May  term,  1822. 

Ewing  and  Wall,  counsel  for  the  overseers  of  the  poor  of  the 
township  of  Hopewell,  contended,  that  the  order  of  removal  of 
the  two  justices,  and  that  of  the  Sessions,  ought  to  be  quashed, 
because  the  settlement  of  Christian  Brooks  was  not  in  the  town- 
ship of  Hopewell.  1.  She  could  gain  a  settlement  there  only  by 


172  NEW  JERSEY  SUPREME  COURT. 

Overseers  of  Poor  of  Hopewell  v.  Overseers  of  Poor  of  Amwell. 

service  of  apprenticeship  under  an  indenture.  But  this  instrument 
was  not  an  indenture  ;  it  had  no  wax  or  wafer  seal.  The  state  of 
New  Jersey,  (Pat.  254)  making  scrolls  good  seals  only  applied 
to  instruments  for  the  payment  of  money.  They  cited  also,  on 
the  subject  of  seals,  5  John.  244,  opinion  of  Kent  J.;  Perkins, 
sec.  128 ;  Coke's  Inst.  169.  2.  Nor  was  the  service,  a  service  of 
apprenticeship.  The  term  apprenticeship,  made  use  of  in  tho 
statute,  (Pat.  26,  sec.  1)  was  a  legal  term,  and  must  have  a  legal 
signification.  To  make  a  person  an  apprentice  there  must  be  a 
binding  to  service  by  deed.  1  Burns'  Just.  60.  Bac.  Abr.  letter 
A,  557,  et  sequente.  2  Ld.  Ray.  1117.  Chit,  on  Apprentices  28. 

It  may  be  contended,  that  though  there  is  no  legal  indenture 
of  apprenticeship,  yet  that  a  service  under  this  instrument  is  suf- 
ficient, as  against  the  township,  to  gain  a  settlement.  But  this  is 
not  true:  tho  instrument  is  wholly  void,  and  cannot  be  sfct  up 
for  any  purpose  or  against  any  person.  1.  It  is  not  good  against 
the  child.  2.  It  is  not  good  against  the  mother.  Whatever  right 
a  father  had  to  bind  his  children,  no  such  right  existed  in  the 
mother.  1  Black.  Com.  453.  4  Bur.  487,  492.  The  children 
here  were  bastards,  but  that  does  not  alter  the  position.  In  1 
Swift's  System  208,  it  is  said,  "  the  father  of  a  bastard  child  has 
no  power  or  authority  over  him"  a  fortiori,  the  mother  has  none. 
The  act  of  1798,  (Pat.  305)  only  gives  the  mother  authority  to 
hind  in  case  of  the  death  of  the  father.  3.  It  is  not  good  against 
Maxton.  4.  The  instrument  is  not  good,  as  against  the  township. 
There  are  some  cases  in  Burrow  where  a  settlement  has  been 
obtained  by  apprenticeship,  although  the  indenture  was  defec- 
tive. But,  in  these  cases,  it  was  decided,  that  the  indenture  waa 
voidable  only,  and  not  void.  No  case  can  be  produced  where  a 
settlement  has  been  gained  by  a  service  under  a  writing  without 
seal,  or  an  instrument  which  is  void.  It  has  been  repeatedly  de- 
cided, that  although  there  may  be  an  agreement,  and  a  service 
under  it,  yet  it  will  not  gain  a  settlement.  Burrow's  Settlement 
Cases  272,  540,  656.  Wo  may  be  referred  to  two  cases  in  this 
court,  viz.  that  of  Hopewell  v.  Amwell,  1  Pen.  Rep.  421,  and 
tbat  of  the  Township  of  Franklin  v.  South  Brunswick,  Ib.  442. 
In  the  first,  there  was  a  writing  executed  by  the  father;  and  tho 
objection  was  that  the  child  did  not  sign  it.  There  was  a  regular 
valid  instrument,  and  the  father,  who  was  entitled  to  the  service 
of  the  child,  had  contracted.  The  instrument  was  valid,  as  to  all 


SEPTEMBER  TERM,  1822.  173 

Overseers  of  Poor  of  Hopewell  v.  Overseers  of  Poor  of  Amwell. 

except  the  child.  The  other  case  was,  where  the  pauper  was 
bound  out  by  the  overseers  of  the  poor  and  two  justices  of  the 
peace,  under  the  18th  section  of  the  act,  (Pat.  N.  J.  Laws  31). 
And  it  was  objected,  that  the  justices  were  not  together  when 
the  indenture  was  made,  and,  therefore,  that  the  indenture  was 
void.  But  the  court  determined,  that  the  indenture  was  good. 
Judge  Pennington  intimates,  that  a  service  under  a  voidable 
indenture  would  gain  a  settlement,  but  he  surely  never  intended 
to  say,  that  a  service  under  a  void  indenture  could  gain  a  settle- 
ment. 

Bonnel  and  Vroom,  contra,  contended,  that  there  was  such  a  ser- 
vice of  apprenticeship  under  this  instrument  as  to  gain  the  pauper 
a  settlement  in  the  township  of  Hopewell.  The  statutes  relative 
to  the  settlement  of  the  poor  (they  said)  should  be  construed 
liberally;  their  object  was  to  further  the  purposes  of  humanity. 
Chit,  on  Apprentices,  Preface  15.  According  to  the  common  law 
it  appeared  there  could  be  no  apprenticeship,  unless  there  was  a 
particular  trade  to  be  learned.  But  the  strictness  of  the  com 
mon  law  had  not  been  followed  up  in  modern  courts,  and  was. 
done  away  by  acts  of  the  legislature.  Burrow's  Settlement  Cases 
657.  The  act  of  New  Jersey,  1774,  (Pat.  26)  was  to  be  construed 
by  the  common  law  which  was  then  in  force;  and,  by  the  com- 
mon law,  this  service  was  to  be  considered  as  an  apprenticeship, 
because  the  father  could  not  legally  bind  his  child  as  a  servant. 
This  indenture,  by  the  common  law,  was  not  void,  but  voidable 
only,  and  if  it  be  not  avoided  by  the  apprentice  or  child  the 
township  or  master  cannot  avoid  it.  Though  this  instrument 
was  not  strictly  an  indenture  at  common  law,  because  it  had  no 
seal  of  wax  or  wafer,  yet  the  want  of  a  seal  was  not  such  a  defect 
as  to  make  it  void,  so  that  the  township  could  take  advantage 
of  it.  Seals  had  their  origin  in  the  ignorance  of  mankind,  when 
men  were  unable  to  evidence  their  contents  by  writing.  The 
definition  of  a  seal  is  cera  impressio,  et  sine  impressione  non  est 
sigillum.  And  the  reason  given  for  allowing  the  jury  to  take  a 
deed  out  with  them  is,  that  being  from  the  neighbourhood, 
some  of  them  might  be  supposed  to  know  the  impression  of  the 
seal.  1  Wash.  Eep.  42.  5  Bin.  241.  But  now  there  is  seldom 
any  impression  on  the  seal,  and  none  by  which  the  seal  of  one 
man  can  be  distinguished  from  that  of  another;  therefore,  as  the 
reason  of  the  law  does  not  now  exist,  the  law  itself  ought  to 


174  NEW  JERSEY  SUPREME  COURT. 

Overseers  of  Poor  of  Hopewell  v.  Overseers  of  Poor  of  Amwell. 

cease.  When  an  indenture  has  been  executed  by  the  parties,  and 
all  the  essential  requisites  are  combined,  the  court  will  not,  in  a 
settlement  case,  look  at  mere  matters  of  form.  By  the  statute  5 
Elizabeth,  it  is  enacted,  that  there  shall  be  a  binding  for  seven 
years,  or  it  will  be  absolutely  void,  yet  a  binding  for  four  years, 
under  this  statute,  was  held  a  good  binding  to  gain  a  settlement. 
3  Sums'  Just.  384-5.  Chit,  on  Apprentices  35.  A  service  under 
a  person  who  has  no  title  to  the  service  of  the  apprentice,  or 
servant,  will  be  good  against  the  township.  3  Sums'  Just.  406. 

In  1  Pen.  Rep.  422,  there  was  no  binding  on  the  part  of  the 
apprentice;  he  did  not  sign  the  instrument,  and  yet  it  was  held 
good  against  the  township;  and  in  the  case  of  the  King  v.  the 
Inhabitants  of  St.  Nicholas,  Bur.  Settlement  Cases  91,  though  the 
master  did  not  execute  the  instrument,  it  was  held  sufficient  to 
gain  a  settlement  for  the  apprentice.  3  Sums'  Justice  384.  From 
our  statute  (Pat.  305)  it  appears  as  if  these  defects  ought  not  to 
be  taken  advantage  of  by  any  other  person  than  the  party. 
This  act  recognizes  the  doctrine  of  the  common  law.  It  merely 
requires  the  assent  of  the  guardian,  which  must  be  given  in  a 
particular  manner.  He  is  merely  a  person  standing  in  loco 
parentis,  in  such  a  way  as  to  see  that  no  advantage  is  taken  of 
the  child.  It  is  not  necessary  that  the  guardian  should  take 
upon  himself  any  binding  covenant. 

It  has  been  said,  that  the  mother  has  no  power  to  bind  her 
bastard  child ;  although  this  case  does  not  come  within  the  very 
letter,  surely  it  is  within  the  spirit  of  the  act.  It  is  a  mere  casus 
omissus.  But  if  she  is  not  such  a  mother  as  may  bind  her  child, 
yet  she  may  do  it  as  guardian,  for  she  is  the  natural  guardian  of 
the  child  ;  and  this  binding,  by  the  mother,  was  sufficient  to  bind 
the  township;  therefore,  they  trusted  the  order  of  the  justices 
and  of  the  Quarter  Sessions  would  be  affirmed. 

Curia  advisare  vult.  And  now,  at  this  term,  the  Chief  Justice 
delivered  the  opinion  of  the  court. 

KIRKPATRICK  C.  J,  It  appears,  by  the  return  of  this  writ,  that 
there  was  an  order  of  two  justices  to  remove  Christian  Brooks, 
a  pauper,  with  her  two  children,  from  the  township  of  Amwell,  in 
the  county  of  Ilunterdon,  to  the  township  of  Hopewell,  in  the 
same  county;  that  there  was  an  appeal  from  this  order  to  the 
Court  of  General  Quarter  Sessions  of  the  Peace  of  that  county; 


SEPTEMBER  TERM,  1822.  175 

Overseers  of  Poor  of  Hopewell  v.  Overseers  of  Poor  of  Amwell. 

and  that  upon  the  hearing  of  the  appeal,  the  order  was  affirmed, 
with  costs. 

It  appears  further,  from  the  case  stated  by  the  Sessions,  that 
this  Christian  Brooks  was  the  daughter  of  one  Mary  Stackhouse, 
and  was  born  a  bastard;  that  she  was  bound  by  her  mother  to 
one  Nathaniel  Saxton,  of  the  said  township  of  Hopewell,  for  the 
term  of  six  years  and  six  months,  to  common  service,  and  served 
him  there  for  three  years  and  a  half  of  that  time ;  that  this  bind- 
ing was,  in  its  form,  by  a  certain  writing  called  an  indenture, 
which  was  executed  by  both  the  pauper  and  her  mother,  each 
of  them  making  her  mark  thereto,  and  acknowledging  it  to  be 
her  hand  and  seal ;  but  that  there  was,  in  fact,  no  seal,  either  of 
wax  or  wafer,  affixed  to  the  said  writing,  but  a  scribble  made  with 
a  pen  only.  And  the  question  is,  whether  this  be  such  a  serving 
of  apprenticeship  under  indenture  as  will  gain  a  settlement  under 
the  act  for  the  settlement  and  relief  of  the  poor  ?  The  objection 
is,  that  the  writing  was  not  sealed,  and  that,  therefore,  it  could 
not  be  an  indenture,  nor  the  service  under  it  be  a  service  under 
indenture,  which,  alone,  is  sufficient  under  the  act. 

An  indenture,  in  the  language  of  the  law,  is  a  deed,  that  is,  a 
writing  sealed  and  delivered.  It  takes  its  name  from  its  being 
indented,  or  cut,  on  the  top,  or  on  the  side,  either  by  a  waving 
line  or  a  line  of  indenture,  instar  dentium,  so  as  to  fit  or  aptly 
join  its  counterpart,  from  which  it  is  supposed  to  have  been 
separated.  Besides  this  general  understanding  of.  the  law,  our 
act  respecting  apprentices  and  servants  expressly  provides,  that 
the  indenture  of  apprenticeship  or  service  shall  be  sealed.  When 
the  act  for  the  settlement  of  the  poor,  therefore,  speaks  of  gain- 
ing a  settlement  by  serving  an  apprenticeship  under  indenture,  it 
must  necessarily  mean  such  indenture  as  the  law  prescribes,  an 
indenture  sealed.  We  are  to  inquire,  therefore,  what  the  law 
means  by  a  seal,  or  a  writing  sealed. 

There  has  been  a  good  deal  of  speculation  in  the  courts  of  some 
of  these  states  upon  this  subject.  They  have  investigated,  with 
profound  learning,  the  nature,  origin,  and  utility  of  seals,  and  of 
what  a  seal  must  consist;  and  some  of  them  have  made  the  icon- 
derful  discovery,  that  a  seal  may  be  not  only  without  and  distinct 
impression,  but  also  without  wax,  or  any  thing  in  the  nature  of 
wax,  or  in  any  way  susceptible  of  impression.  To  have  said,  that 
sealing  should  not  be  necessary  to  constitute  a  deed,  but  that  the 


176  NEW  JERSEY  SUPREME  COURT. 

Overseers  of  Poor  of  Hopewell  v.  Overseers  of  Poor  of  Amwell. 

subscription  of  the  name  only  should  be  sufficient  for  that  pur- 
pose, would  have  had  some  foundation  in  reason,  K'owever  little 
it  might  have  in  the  law,  to  support  it ;  but  to  say,  that  a  writing 
is  sealed  without  any  thing  affixed  to  it  in  the  nature  of  a  seal,  is 
a  little  like  Lord  Peter's  saying,  that  his  brown  loaf  was  as  fine 
a  leg  of  mutton  as  ever  came  out  of  the  Leaden-Hall  market ; 
and,  I  think,  must  be  received  pretty  much  upon  the  same  kind 
of  authority.  "Gr.  Confound  you  all  eternally,  and  gripe  your  guts 
with  hunger  if  you  offer  to  believe  otherwise." 

By  our  act  concerning  obligations,  &c.  it  is  enacted,  that  any 
instrument  for  the  payment  of  money  to  which  the  person  making 
the  same  shall  affix  a  scroll,  or  ink,  or  other  device,  by  way  of  seal, 
shall  be  taken  and  adjudged  to  be  of  the  same  force  and  obliga- 
tion as  if  it  were  actually  sealed  witb  wax ;  thus  fully  recogniz 
ing  the  principle,  which  common  sense  had  before  taught  to  all 
men,  that  wax,  or  something  in  the  nature  of  wax,  and  suscepti* 
ble  of  receiving  an  impression,  is  necessary  to  constitute  a  seal, 
but  dispensing  with  such  seal  in  the  case  of  instruments  for  the 
payment  of  money.  The  act  does  not  say,  that  a  scroll,  or  ink,  or 
other  device  affixed,  shall  be  a  seal,  but,  that  being  affixed,  by  way 
of  seal,  they  shall  have  the  same  force  and  obligation  as  a  seal. 
This,  however,  is  only  in  the  case  of  instruments  for  the  payment 
of  money,  of  which  an  indenture  of  apprenticeship  is  not  one. 
In  all  other  cases  it  is  left  as  at  the  common  law.  The  instru- 
ment before  us,  therefore,  can,  in  no  sense  known  to  the  law,  be 
called  an  indenture. 

But  then  it  is  said,  that  inasmuch  as  it  is  in  the  form  of  an 
indenture,  and  was,  by  the  parties,  understood  to  be  an  inden- 
ture ;  and  inasmuch  as  the  service,  which  is  an  essential  thing  in 
gaining  a  settlement,  was  actually  performed  under  it,  it  does 
not  lie  in  the  mouth  of  the  township  now  to  except  against  it; 
that  it  was  not  void,  but  voidable  only,  and,  being  so,  it  could  be 
avoided  by  the  parties  alone,  and  not  by  third  persons. 

It  is  true,  that  in  England  this  doctrine  has  been  maintained 
to  a  certain  extent.  As  where  the  indenture  has  been  for  a  shorter 
time  than  that  prescribed  by  the  statute ;  and  where  the  appren- 
tice only  has  signed  the  indenture,  and  not  the  parent  or  guar- 
dian, or  even  the  master;  and  in  some  other  cases  of  a  similar 
nature,  in  which,  though  the  statute  says  the  indenture  shall  be 
void  to  all  intents  and  purposes,  yet  it  has  been  adjudged,  that 


SEPTEMBER  TERM,  1822.  177 

Overseers  of  Poor  of  Tewksbury  v.  Overseers  of  Poor  of  Washington. 

it  was  not  absolutely  void,  but  voidable  only,  at  the  election  of 
the  parties  themselves,  if  they  thought  fit  to  take  advantage  of  it, 
but  not  of  third  persons,  and  that  therefore,  serving  under  inden- 
tures of  this  kind  gained  a  settlement.  In  these  cases,  however, 
it  was  a  serving  under  indenture  within  the  words  of  the  statute, 
for  though  the  indenture  were  voidable,  yet  they  were  not  void, 
but  subsisting  indentures  until  avoided  by  the  parties. 

But  there  is  no  case  to  be  found  in  the  books  where  the  ser- 
vice of  an  apprenticeship  under  a  parol  agreement,  or  under  any 
instrument  of  writing,  not  being  an  indenture  sealed,  has  been 
adjudged  to  be  sufficient  to  gain  a  settlement.  And  the  reason 
is,  that  the  statute  expressly  requires  a  service  under  indenture.  In 
the  case  of  the  King  v.  Mellingham,  the  writing,  though  other- 
wise in  the  form  of  an  indenture,  was  not  actually  indented,  and 
it  was  adjudged  in  the  King's  Bench,  that  no  settlement  could 
be  gained  under  it.  And  it  has  been  thought  necessary,  both  in 
England  and  here,  to  remedy  this  by  statute,  and  to  declare  that 
no  deed,  contract,  or  writing,  for  binding  any  one  an  apprentice 
or  servant  shall  be  void  by  reason  of  its  not  being  indented  only. 
And  if  this  be  so  as  to  the  indenting,  which  is  but  mere  matter 
of  form,  how  much  more  so  as  to  the  sealing,  which  is  the  very 
essence  of  the  thing. 

I  am  of  opinion,  therefore,  that  the  order  of  Sessions,  as  well 
as  the  order  of  the  justices  in  this  case,  be  quashed. 

CITED  is  Overs.  Bloomfield  v.  Acquackanunck,  3  Hal.  319-321.  Overs.  North 
Brunswick  v.  Franklin,  1  Harr.  536.  Flanagan  v.  Cajnden  Hut.  Int, 
Co.,  1  Dutch.  511.  Perrine  v.  Cheeseman,  6  Hal.  174. 


OVERSEERS  OF  THE  POOR  OF  THE  TOWNSHIP  OF  TEWKSBURY, 
of  the  county  of  Hunterdon,  against  OVERSEERS  OF  THE  POOR  OF 
THE  TOWNSHIP  OF  WASHINGTON,  in  the  county  of  Morris. 


ON   CEETIORAEI. 


An  order  of  two  justices  for  issuing  a  distress  warrant  against  overseers  of  the 
poor,  made  without  any  notice  of  the  application  for  such  distress  warrant  given 
to  the  overseers  against  whom  it  is  to  be  issued,  is  irregular,  and  will  be  set  aside. 

This  was  a  certiorari  directed  to  two  justices  of  the  peace  of 
the  county  of  Hunterdon,  to  bring  up  the  judgment,  order,  and 
proceedings  before  them  had,  upon  the  complaint  of  the  over- 
Beers  of  the  poor  of  the  township  of  Washington  against  the 
overseers  of  the  poor  of  the  township  of  Tewksbury,  in  the  case 

VOL.  I.  M 


178  NEW  JERSEY  SUPREME  COURT. 

Overseers  of  Poor  of  Tewksbury  v.  Overseers  of  Poor  of  Washington. 

of  William  Blaine,  a  pauper.  The  facts,  as  they  appeared  by  the 
certificate  of  the  proceedings  sent  up  by  the  two  justices,  were 
these :  William  Blaine,  a  pauper,  whose  legal  settlement  was  in 
the  township  of  Tewksbury,  removed  into  the  township  of  Wash- 
ington, and  there  became  sick,  and  a  charge  npon  the  township 
The  overseers  of  Washington  gave  notice  to  those  of  Tewksbury 
of  the  circumstances  and  conditions  of  the  said  pauper,  and  re 
quested  them  to  relieve  and  maintain  him  during  his  illness,  and 
to  remove  him.  This  the  overseers  of  Tewksbury  neglected  to 
do.  The  overseers  of  Washington  were,  therefore,  obliged  to 
maintain  Blaine,  the  pauper,  until  he  was  in  a  situation  to  be 
removed.  To  recover  the  amount  of  their  expenses  for  maintain- 
ing the  pauper,  during  his  sickness,  and  previous  to  his  removal, 
the  overseers  of  Washington  applied  to  two  justices  of  the  peace 
of  the  township  of  Tewksbury,  in  the  county  of  Hunterdon,  to 
issue  their  warrant  of  distress  against  the  overseers  of  Towksbury, 
as  by  the  ninth  section  of  the  act  "for  the  settlement  and  relief 
of  the  poor"  (Pat.  N.  J.  Laws  29)  they  are  authorized  to  do. 
The  said  justices  accordingly  issued  their  distress  warrant  to  levy 
the  amount  of  the  said  expenses  out  of  the  goods  and  chattels 
of  the  overseers  of  Tewksbury.  But  it  did  not  appear  upon  the 
face  of  the  proceedings  of  the  two  justices,  that  the  overseers  of 
Tewksbury  had  any  notice  of  the  application  for  the  distress 
«  warrant. 

Ewing  now  moved  to  quash  the  order  of  the  justices  for  issu- 
ing a  distress  warrant,  upon  the  ground,  that  it  had  been  made, 
and  the  distress  warrant  issued,  without  giving  any  notice  to  the 
overseers  against  whom  it  was  issued  of  the  application  for  the 
earae. 

KIRKPATRICK  C.  J.  I  think  we  have  determined  that  there 
ought  to  be  a  notice  to  the  overseers  against  whom  the  distress 
is  to  be  issued.  It  is  contrary  to  the  whole  policy  of  our  law 
that  they  should  be  condemned  unheard. 

FORD  J.  It  stands  on  the  same  footing  as  an  order  of  filiation ; 
•the  act  does  not  require  notice,  but  it  has  always  been  held 
inecessary. 

ROSSELL  J.  concurred. 

Xet  the  order  of  the  justice  for  issuing  the  distress  warrant, 
.and,  also,  the  said  distress  warrant,  be  quashed. 


SEPTEMBER  TERM,  1822.  179 


Berry  v.  Callet. 


JOHN  A.  BERRY  against  JAMES  CALLET. 

1.  The  Court  of  Common  Pleas  may  refuse  to  enter  judgment  in  attachment 
on  the  report  of  auditors,  and  may  refer  the  matter  back  to  them  if  they  think 
that  the  auditors  have  made  a  mistake  in  law. 

2.  This  court  will  not  grant  a  mandamus  to  compel  the  Common  Pleas  to 
enter  judgment  on  a  report  of  auditors,  while  a  rule  is  pending  in  that  court 
to  shew  cause  why  the  report  should  not  he  set  aside. 

This  was  an  attachment  by  John  A.  Berry  against  James 
Callet,  as  an  absconding  debtor.  At  the  last  term  of  this  court,  a 
rule  was  taken  on  behalf  of  G.  Cassedy,  esq.  on  the  judges  of  the 
Court  of  Common  Pleas  of  the  county  of  Bergen,  to  shew  cause 
on  the  first  day  of  this  term,  why  a  mandamus  should  not  issue 
commanding  them  to  render  judgment  in  this  cause  upon,  and 
according  to,  the  report  of  the  creditors  made  to  them  therein. 
By  the  return  of  the  Court  of  Common  Pleas  to  this  rule,  it 
appeared,  that  John  A.  Berry  had  regularly  sued  out  an  attach- 
ment against  the  rights,  credits,  moneys,  and  effects  of  James 
Callet,  an  absconding  debtor.  By  virtue  of  this  attachment,  prop- 
erty to  the  amount  of  $2914  was  attached ;  auditors  were  appointed, 
in  the  usual  manner,  to  audit  and  .adjust  the  accounts  of  the 
plaintiff,  and  of  such  of  the  creditors  of  the  absconding  debtor 
as  should  appl}*  to  them  for  that  purpose.  On  the  12th  of  January, 
1822,  the  auditors  reported  to  the  Court  of  Common  Pleas,  that 
they  "found  due  from  the  said  James  Callet  to  the  said  John  A. 
Berry  the  sum  of  $6656.25,  and  that  they  found  due  from  the 
said  James  Callet  to  Stephen  V.  Boreland  $350.87,  and  to  H.  E. 
Haight  8543.09.  And  they  further  reported,  that  they  found 
nothing  due  from  the  said  James  Callet  to  the  Mechanic's  Bank, 
J.  Delateer,  J.  B.  Maria,  E.  Millon,  G.  L.  Therott,  P.  E.  Fere- 
vaU,  David  Delapier,  John  L.  and  Gabriel  F.  Duflon,  and  that 
the  said  John  A.  Berry,  Stephen  V.  Boreland,  B.  and  H.  E. 
Haight,  Mechanic's  Bank,  J.  Delatour,  J.  B.  Maria.  E.  Millon, 
G.  L.  Therott,  P.  E.  Ferevall,  D.  Delapier,  John  L.  and  G. 
Duflon,  are  the  only  creditors  of  James  Callet,  who  applied  to 
them  to  audit  and  adjust  their  demands."  Upon  the  coming  in 
of  this  report,  a  rule  was  taken  by  Samuel  Cassedy,  esq.  attor- 
ney for  the  claiming  creditors,  "  to  shew  cause  why  the  report  of 
auditors  should  not  be  set  aside,  and  the  claims  of  the  Mechan- 
ic's Bank,  and  John  L.  and  Gabriel  Duflon,  David  Delapier, 
Peter  E.  Ferevall,  Gabriel  L.  Therott,  Etienne  Millon,  John 


180  NEW  JERSEY  SUPREME  COURT. 

Berry  v.  Callet. 

B.  Maria,  and  of  John  Delatour  bo  admitted,  and  that  they  take 
their  dividend  of  the  property  attached,  and  that  the  parties 
interested  have  leave  to  take  affidavits."  By  virtue  of  this  rule, 
affidavits  wore  taken,  by  which  it  appeared,  that  James  Callet, 
the  absconding  debtor,  was  indebted  to  the  Mechanic's  Bank, 
John  L.  and  G.  Duflon,  and  the  persons  above  named,  in  con- 
siderable sums  of  money.  And,  at  the  same  term,  a  motion  was 
made  by  George  Cassedy,  esq.  attorney  for  the  plaintiff  in 
attachment,  for  judgment  on  the  report  of  the  said  auditors, 
which  motion  the  court  denied,  and  refused  to  enter  judgment 
on  said  report. 

It  was  in  this  stage  of  the  cause  that  the  rule  for  a  mandamus 
out  of  this  court  to  the  Common  Pleas  of  Bergen,  commanding 
them  to  enter  judgment  on  the  report  of  auditors,  was  taken. 

And  now  Halsey,  in  support  of  the  motion  for  a  mandamus, 
said,  that  the  matter  in  controversy  was  between  the  attaching 
creditor  and  other  pretended  creditors ;  that,  at  the  third  term 
after  the  issuing  of  the  attachment,  he  had  applied  for  judgment  on 
the  report  of  auditors;  but  the  pretended  creditors,  viz.  the  Me- 
chanic's Bank  and  others  obtained  a  rule  to  set  aside  the  report. 
The  question  was,  whether  the  Court  of  Common  Pleas  had  a 
right  to  grant  the  rule?  or,  whether  they  ought  not  to  have  per- 
mitted judgment  to  have  been  entered  on  the  auditors'  report? 
He  contended,  that  the  Court  of  Common  Pleas  had  no  discre- 
tion upon  the  subject,  but  were  bound  by  the  statute  to  enter 
judgment.  Rev.  Laws  315,  or  Pat.  edition  298,  sec.  15.  The 
words  of  the  statute  were,  "It  shall  be  the  duty  of  the  auditors 
to  ascertain  the  sum  due  to  the  plaintiff  and  each  of  the  credi- 
tors, and  to  make  their  report  thereof  in  writing  under  their 
hands,  which  report  shall  be  filed  by  the  clerk,  and  shall,  the 
third  term,  be  made  absolute,  and  judgment  entered  thereon." 
The  statute  gave  the  court  no  authority  to  set  the  report  of 
auditors  aside,  nor  t-o  refuse  to  enter  judgment  thereon  when 
applied  for,  and,  therefore,  the  mandamus  ought  to  be  granted. 

Frelinghuysen,  attorney-general,  contra.  The  court  perceive 
that  the  object  of  the  application  is  to  control  the  Court  of  Com- 
mon Pleas  in  the  exercise  of  their  power  over  the  report  of  the 
auditors.  The  auditors,  by  their  report,  shut  out  creditors  to  the 
amount  of  $5000,  and,  upon  the  coming  in  of  the  report,  a  rule 


SEPTEMBER  TERM,  1822.  181 

Berry  v.  Callet. 

was  taken  to  shew  cause  why  it  should  not  be  set  aside.  The 
only  question  was,  whether  the  auditors  were  subject  to  no  con- 
trol ?  or,  whether  the  Court  of  Common  Pleas  had  a  right  to  in- 
vestigate the  correctness  of  their  proceedings  ?.  The  auditors  can 
certainly  possess  no  more  power  than  referees  have,  and  I  think 
they  possess  much  less,  for  they  are  only  to  ascertain  the  sum 
due  to  the  creditors.  But  the  report  of  referees  may  be  set  aside 
by  the  court,  and  why  may  not  the  report  of  auditors.  It  cannot 
be,  that  they  are  the  only  inferior  tribunal  without  control.  But 
admitting  that  the  auditors  possessed  the  power  of  determining 
upon  the  claims  of  the  creditors,  our  complaint  is,  that  they  re- 
jected our  claim,  without  any  evidence  that  they  were  incorrect, 
and  without  any  consideration  :  and  we  came  before  the  Court 
of  Common  Pleas  to  shew  that  they  acted  erroneously. 

Hornblower,  on  same  side.  It  is  a  principle,  that  where  a 
statute  gives  a  summary  proceeding  without  giving  the  detail, 
these  details  must  be  pursued  according  to  the  principles  of  the 
common  law.  This  principle  is  applicable  to  the  proceedings  on 
attachment.  The  statute  does  not  point  out  the  detail  of  all 
the  proceedings  necessary  to  be  had  under  it.  If,  then,  these 
auditors  in  their  proceedings  should  violate  the  principles  of  the 
common  law,  there  must  be  a  superintending  power  in  the  court 
to  correct  them.  Are  these  auditors,  who  are  unsworn,  and 
never  legal  characters,  to  be  above  control  ?  are  their  decisions 
final?  They  are  to  audit  the  claims  of  all  persons  who  come 
before  them,  and  if  there  is  a  legal  objection  to  these  claims,  the 
defendant  or  his  creditors  may  come  before  the  court  to  have 
the  report  set  aside.  If  the  report  of  auditors  was  conclusive, 
the  most  dangerous  consequences  to  creditors  might  ensue. 
These  creditors  are  appointed  by  the  nomination  of  the  plaintiff 
in  attachment,  and  they  are  generally  his  friends,  and  he  might 
get  them  to  make  a  report  in  his  favour  and  reject  the  claims 
of  other  creditors. 

FORD  J.  Suppose  the  report  of  auditors  is  incorrect,  what  do 
you  do  with  it,  refer  it  back  ? 

Horriblower.  The  court  would  refer  it  back  to  the  auditors,  to 
ascertain  the  amount.  But  if  the  court  thought  that  the  claim 
was  not  just,  they  might  set  the  report  aside  as  to  that  claim.  I 
apprehend  the  court  will  never  say  they  have  no  control  over 
these  auditors. 


182  NEW  JERSEY  SUPREME  COURT. 

Berry  v.  Callet. 

Halsey  in  reply.  The  manner  in  which  auditors  may  bo  ap- 
pointed, has  nothing  to  do  with  the  question  before  the  court; 
because,  being  appointed  according  to  the  directions  of  the 
statute,  they  are  presumed  to  be  honest  and  discreet  men. 

It  is  made  the  duty  of  auditors  to  ascertain  the  sum  due  to 
each  of  the  creditors.  But  how  is  this  to  bo  done?  Certainly 
by  evidence  which  will  satisfy  their  consciences.  And  they 
must  investigate  the  claims  of  the  creditors,  otherwise  it  might 
be  in  the  power  of  a  friend  of  the  debtor  to  manufacture  debts, 
or  notes,  which  would  absorb  the  whole  of  the  absconding 
debtor's  property.  Suppose  the  notes  on  which  the  claims  of 
these  creditors  were  founded,  had  been  usurious,  or  given  for  a 
gambling  debt,  could  not  the  auditors  judge  of  this,  and  if  they 
believed  it,  might  they  not  reject  them?  And  if  they  do  reject 
them,  the  court  has  no  power  to  set  aside  the  report,  or  go  into 
an  investigation  of  it.  The  act  says,  the  report  shall  bo  made 
absolute  at  the  third  term;  and  the  Court  of  Common  Pleas,  or 
any  other  court,  cannot  prevent  it. 

KIRKPATRICK  C.  J.  I  can  scarcely  entertain  a  doubt,  that  the 
court  have  a  right  to  open  the  report  of  the  auditors.  Chief 
Justice  Kinsey,  told  me  that  before  the  revolution,  this  court  not 
only  stayed  the  proceedings  in  attachment,  but  actually  ordered 
an  issue  to  try  the  claim  of  a  creditor,  and  took  a  verdict  of  a 
jury  upon  it,  and  gave  the  creditors  liberty  to  file  a  plea  in  the 
name  of  the  absconding  debtor.  However,  this  case  requires  a 
little  consideration,  and  we  will  reflect  on  it. 

On  a  subsequent  day,  the  court  said,  they  were  of  opinion  that 
the  judges  of  the  Common  Pleas,  had  a  right  to  refer  the  matter 
back  to  the  auditors,  if  they  thought  that  in  making  their  report 
they  had  committed  an  error  or  mistake  in  law.  They,  there- 
fore, refused  the  mandamus. 

CUED  IB  Stewart  v.  Waltert,  9  Vr.  278.  Phoenix  Iron  Co.  v.  N.  T.  Wrought 
Iron  JR.  R.  Chair  Co.,  3  Dutch.  491.  Taylor  Ex.  v.  Woodward,  6 
Hal.  1. 


SEPTEMBER  TERM,  1822.  183 


Adams  v.  Executors  of  Rolston. 


JOHN  ADAMS,  JOHN  KNOX,  and  JAMES  NIXON  against  the  EXECU- 
TORS OF  JOHN  ROLSTON,  deceased. 

In  an  action  of  assumpsit  for  goods  sold,  this  court  will  not  make  an  order 
on  the  plaintifis  to  produce  their  oooks  and  papers  relative  to  the  issue  previous 
to  the  trial,  to  be  left  with  the  defendant's  attorney  for  his  inspection. 

This  was  an  action  on  the  case,  which  had  been  brought  by  the 
plaintiffs,  who  were  merchants  residing  in  Philadelphia,  against 
the  defendants,  for  goods  and  merchandise  sold.  It  had  been 
noticed  for  trial  at  the  ensuing  Morris  circuit,  and  now  Vanarsdale 
"moved  that  all  the  proceedings  in  the  cause  might  be  stayed 
until  the  plaintiffs  produce,  upon  affidavit,  to  the  defendants,  or 
their  attorney,  before  the  trial  of  this  cause,  at  such  time  as  the 
court  may  direct,  all  the  books  and  papers  in  their  possession 
concerning  the  matters  in  issue  in  the  above  cause;  and  that  the 
said  books  and  papers  be  left  with  the  defendants,  or  their 
attorney,  or  at  such  convenient  place,  and  for  such  space  of  time 
as  the  court  may  direct,  with  liberty  to  inspect  and  peruse  the 
same,  and  take  copies,  extracts,  or  abstracts  thereof;"  and  read 
a  copy  of  a  notice  of  this  motion,  which  had  been  served  on  the 
plaintiffs'  attorney.  In  support  of  this  motion  he  said,  it  was  the 
practice  of  courts,  whenever  required,  to  give  the  parties  the  bene- 
fit of  papers  in  the  other  partj7's  custody.  In  N.  York,  on  a  similar 
application,  the  court  ordered  the  production  of  papers  and  writ- 
ten correspondence  relative  to  the  matters  in  issue.  11  John.  245, 
note,  Lawrence  v.  the  Ocean  Ins.  Co.  Courts  of  law  would  not  send 
the  party  into  equity  to  get  a  sight  of  papers  when  they  could 
give  him  the  benefit  of  them  by  rule.  The  courts  of  the  United 
States  have  this  power,  and  it  was  given  to  them  to  prevent  the 
necessity  of  instituting-suits  in  equity  merely  to  obtain  from  an 
adverse  party  the  production  of  deeds  and  papers  relative  to  tho 
litigated  issue.  2  Dal.  Rep.  332.  Courts  of  law  had  become 
more  liberal  in  their  practice  than  formerly,  and  now  frequently 
granted  relief  where  it  was  formerly  necessary  to  resort  to  a  court 
of  chancery.  Thus  anciently,  by  a  rigid  adherence  to  the  rule 
requiring  a  profert,  a  person,  in  order  to  recover  upon  a  lost 
bond,  was  driven  into  a  court  of  equity;  but  now,  upon  suggest- 
ing the  loss  of  the  bond  in  the  declaration,  he  may  proceed  at 
law.  This  practice  of  requiring  a  party  to  produce  papers  rela- 
tive to  the  matters  in  issue,  was  well  settled  in  England.  1  Taunt. 


164  NE\V  JERSEY  SUPREME  COURT. 

Adams  v.  Executors  of  Rohton. 

Hep.  167.  2  Strange  1139.  1  Camp.  Rep.  562.  1  Phil  Evi.  337. 
And  there  was  no  good  reason  why  it  should  not  be  adopted  in 
this  court ;  this  case  afforded  a  fair  opportunity  of  introducing 
it  here.  The  plaintiffs  were  merchants,  and  the  defendants 
executors,  ignorant  of  the  transactions  of  their  testator,  and 
unless  they  can  have  a  sight  of  the  plaintiffs'  books,  they  cannot 
go  to  trial  upon  fair  and  equal  terms. 

Hornblower  and  the  attorney-general  contra.  This  is  a  very 
extravagant  and  unprecedented  application.  It  goes  beyond  any 
thing  the  cases  will  warrant.  It  requires  that  the  plaintffs,  who 
are  merchants  in  Philadelphia,  and  who  are  prosecuting  here  on 
a  simple  account  for  goods  sold,  should  send  all  the  books  of 
their  extensive  concern  into  this  state,  and  that  they  should  be 
left  where  the  defendants'  counsel  can  inspect  them  from  day  to 
day.  What  would  be  the  condition  of  these  plaintiffs  if  the  court 
allow  this  rule  ?  They  might  almost  as  well  shut  up  their  store  as  to 
attempt  to  carry  on  business  without  their  books,  or  to  be  obliged 
to  lay  them  open  to  the  inspection  of  every  defendant  whom  they 
shall  be  compelled  to  prosecute  for  the  collection  of  their  debts. 
What  merchant  will  deal  with  the  citizens  of  New  Jersey  in  the 
common  course  of  commercial  transactions  if  he  cannot  recover 
his  debt  without  subjecting  himself  to  a  rule  of  this  kind? 

The  case  cited  from  Phillip's  Evi.  337,  also  reported  in  Str. 
1139,  Gaoler  v.Nunnely,  is  by  no  means  analagous.  That  was 
between  a  factor  and  his  employer,  a  grazier,  not  an  action  be- 
tween merchant  and  merchant,  debtor  and  creditor,  but  between 
agent  and  principal.  But  what  was  the  order  in  that  case  ?  was 
it  similar  to  the  one  here  applied  for?  No!  it  was  an  order  that 
the  plaintiff  shew  cause  why  he  should  not  produce  at  the  trial  the 
several  books  in  which  he  entered  the  amount  of  beasts  sold,  and 
of  money  received,  on  the  defendant's  account,  and,  no  cause 
being  shewn,  the  rule  was  made  absolute. 

But  this  rule  is  not  necessary  hero,  to  make  us  produce  the 
books  as  evidence,  because  they  can  give  us  notice  to  produce 
them  at  the  trial,  and  if  we  do  not,  they  can  prove  them  by  the 
clerks  who  kept  them,  or  in  any  other  manner.  A  court  of  equity 
would  not,  upon  a  bill  filed  for  a  discovery,  compel  a  merchant 
to  produce  all  his  books  of  account,  without  some  special  equity 
or  specific  ground  stated  in  the  bill.  The  rule  in  equity  was,  that 


SEPTEMBER  TEKM,  1822.  185 

Adams  v.  Executors  of  Rolston. 

if  a  plaintiff  has  set  forth  atitle  in  contradiction  to  the  defendant's, 
he  has  no  right,  generally  speaking,  to  look  into  the  defendant's 
title,  but  only  if  the  same  deed  constitutes  in  part  the  defence, 
and  in  part  the  plaintiff's  title.  13  Vez.  251.  1  Mad.  Chancery 
Practice  165.  The  case  cited  from  Dallas  is  founded  on  the 
special  act  of  congress,  and,  therefore,  does  not  apply  to  this  court. 
The  case  from  11  John.  245,  is  a  case  on  a  policy  of  insurance. 
So,  also,  is  the  case  from  1  Camp.  562.  It  may  be  proper,  in  cases 
on  policies  of  insurance,  and  on  documents  in  which  both  parties 
have  an  interest,  but  not  in  a  case  of  this  kind,  which  is  an 
adversary  suit.  If  the  rule  is  granted,  we  cannot  limit  it  as  to 
the  place  of  residence  of  the  party.  If  he  should  reside  in  Maine 
or  Georgia,  and  should  be  obliged  to  bring  an  action  in  this  state, 
he  might  be  compelled  to  produce  his  books.  How  would  a 
merchant  of  England  ever  ivcover  a  debt  in  this  country,  if 
applications  of  this  kind  arc  to  prevail?  Applications  would  be 
continually  made  for  these  rules,  for  the  mere  purpose  of  delay. 
The  practice  act  gives  the  defendant  all  the  right  he  is  entitled 
to;  he  had  availed  himself  of  it;  had  required  a  bill  of  particu- 
lars, which  had  been  furnished  him;  and  this  was  all  he  had  a 
right  to  demand. 

Vanarsdale  in  reply.  It  is  said,  that  in  a  court  of  equity  we 
would  not  be  entitled  to  a  discovery  to  the  extent  we  ask  here. 
I  know  of  no  limit  in  equity  within  which  a  party  could  protect 
himself  from  disclosing  matters  of  contract.  The  apprehensions 
of  the  gentlemen  about  laying  open  their  books  and  exposing  the 
concerns  of  the  plaintiffs  to  the  inspection  of  the  defendants,  are 
altogether  groundless;  they  can  seal  up  every  other  part  of  the 
books,  except  those  which  the  rule  calls  for,  and  this  is  the  ordi- 
nary method  on  these  occasions. 

Why  should  not  the  defendants  be  permitted  to  examine  these 
books  before,  as  well  as  at  the  trial?  The  accoints  are  of  long 
standing;  the  executors  are  ignorant  of  them ;  it  is  impossible  for 
them  to  investigate  them  thoroughly,  in  the  hurry  of  trial.  Courts 
of  law  are  in  the  daily  practice  of  relieving  parties  from  the 
necessity  of  applying  to  a  court  of  equity,  and  this  case  appears 
to  me  peculiarly  proper  for  the  exercise  of  that  relief  here.  It  is 
said,  that  the  cases  cited  are  insurance  cases;  but  in  these  cases 
the  principle  was  decided,  that  the  court  would  make  an  order  on 
the  plaintiff  to  produce,  upon  oath,  all  papers  in  his  possession 


186  NEW  JERSEY  SUPREME  COURT. 

Beading  v.  Den. 

concerning  the  cause  at  issue.  And  if  no  authority  can  be  found 
to  sanction  it,  yet  if  the  rule  is  a  beneficial  one,  and  tends  to 
further  the  ends  of  justice,  it  ought  to  be  adopted. 

KIRKPATRICK  C.  J.    It  is  not  alleged,  that  any  such  rule  has 
ever  been  granted  in  this  court. 

FORD  J.  A  rule  for  the  production  of  corporation  books  might 
be  found  on  the  minutes  of  this  court. 

Curia  advisare  vult.   The  court,  after  taking  time  to  deliberate 
upon  it,  refused  the  motion. 


JOHN  READING  against  JOHN  DEN  ex  dem.  ELISHA  E.  READING  and 

others. 

Upon  the  reversal  or  affirmance  of  a  judgment  of  this  Court  by  the  Court  of 
Errors,  and  a  remittitur  of  the  record,  no  application  to  the  court  for  leave  to 
issue  execution  is  necessary. 

This  cause  had  been  removed  from  this  court  to  the  Court 
of  Errors,  and  the  judgment  was  there  reversed,  and  the  record 
ordered  to  be  remitted. 

Wall  now  moved  to  file  the  remittitur,  and  for  permission  to 
issue  execution. 

Swing  said,  that  it  was  not  necessary  to  apply  to  this  court 
for  leave  to  issue  execution. 

KIRKPATRICK  C.  J.  thought  it  was  necessary  to  make  applica- 
tion to  the  court. 

Swing  said,  he  had  always  taken  the  practice  to  be  otherwise, 
and  prayed  for  time  to  search  for  precedents,  which  was  granted 
him.  At  a  subsequent  day  in  term,  Mr.  Swing  cited  the  follow- 
ing cases,  which  had  been  affirmed  in  the  Court  of  Errors,  the 
execution  remitted  and  execution  issued,  without  any  applica- 
tion to  this  court,  viz.  Joseph  Wall  v.  John  Den  ex  dem.;  Samuel 
Stevenson,  in  ejectment  for  lands  rn  Burlington,  in  1789;  Messrs. 
Paterson  and  Leako  attorneys;  Den  ex  dem.  John  Pearis  and 
Andrew  Pearis  ads.  Mary  Paterson,  in  ejectment  for  lands  in 
Sussex,  in  1795;  Barnt  De  Klyn,  plaintiff  in  error,  v.  Robert 
E.  Griffith,  defendant  in  error,  in  debt,  in  1798  ;  Wm.  Moore 
and  Ebenezer  Powell  v.  John  Den  ex  dem.  John  Locquil,  eject- 


SEPTEMBER  TERM,  1822.  187 

Ely  v.  Norton. 

ment  in  Cumberland,  L.  H.  Stockton  attorney,  in  1798;  John 
Den  ex  dem.  Barnt  De  Klyn  ads.  Robert  Wright  and  Philip 
Nicklin,  ejectment,  Kichard  Stockton  attorney,  in  1805 ;  David 
Allen  v.  John  Den  ex  dem.  Snedecher,  ejectment  in  Middlesex,  in 
1809,  Leake  attorney;  JohnSchenck,  late  collector  &c.  v.  John 
Stevenson,  administrator,  &c.  in  1810;  David  Fogg  and  others  v. 
John  Den,  in  ejectment,  in  1812,  L.  II.  Stockton  attorney ;  Abra- 
ham Ten  Eyck  v.  Elijah  Dewey  and  wife,  in  dower,  1814,  R. 
Stockton  attorney.  These  cases,  he  said,  shewed  what  had 
been  the  uniform  practice  in  this  state,  and  the  practice  in  Eng- 
land appeared  to  be  the  same.  In  2  Tidd's  Practice  1135,  it  is 
said,  "After  affirmance  in  exchequer  chamber,  the  defendant  in 
error,  after  four  days,  may  take  out  execution ;  but  where  the 
judgment  is  affirmed  in  the  exchequer  chamber,  or  house  of 
lords,  it  is  necessary  that  the  transcript  should  be  remitted  to 
the  Court  of  King's  Bench  before  the  execution  is  issued,  or,  at 
least,  before  it  is  returnable."  And  in  2  Saund.  101,  x.  it  is 
said,  "After  affirmance,  &c.,  defendant  in  error  may  take  out 
execution  for  the  sum  recovered  in  the  original  action." — Again, 
"  But  where  a  judgment  is  affirmed  in  the  exchequer  chamber, 
or  house  of  lords,  the  transcript  should  be  remitted  before  the 
issuing  of  the  execution,  at  least  before  it  is  returnable;"  but  it 
is  no  where  said  in  these  books,  that  there  must  be  an  applica- 
tion to  the  court  below  for  leave  to  issue  execution. 

KIRKPATRICK  C.  J.  It  appears  to  be  the  settled  practice  of  the 
court,  that  the  application  for  leave  to  issue  the  execution  is  un- 
necessary. 


AARON  ELY  against  JOHN  NORTON,  executor  of  Sarah  Lee,  deceased. 

ON  CEETIOBAEI. 

Where  an  executor  pays  money  to  a  legatee,  and  six  years  after  the  payment, 
upon  a  settlement  in  the  Orphans'  Court,  discovers  that  he  has  paid  the  legatee 
more  than  he  was  entitled  to,  and  brings  an  action  to  recover  the  money  over- 
paid, the  action  is  barred  by  the  statute  of  limitations. 

This  was  a  certiorari  to  the  Common  Pleas  of  the  county  of 
Monmouth.  The  action  was  originally  commenced  before  a 
justice  of  the  peace,  and  the  following  are  the  facts  upon  which 
it  was  founded:  John  Norton,  the  defendant  in  certiorari, 


188  NEW  JERSEY  SUPREME  COURT. 

Ely  v.  Norton. 

was  tho  executor  of  Sarah  Lee,  deceased,  who  died  in  1791,  at 
which  time  Norton  took  upon  himself  the  execution  of  the  will. 
Aaron  Ely,  tho  plaintiff  in  certiorari,  was  one  of  the  residuary 
legatees  of  Sarah  Lee,  deceased,  and,  as  such,  John  Norton,  the 
executor,  in  1810,  pays  him  $120,  supposing  that  to  bo  tho  sum 
to  which  he  was  entitled  under  tho  will.  In  1817,  Norton,  tho 
executor,  makes  a  settlement  with  the  Orphans'  Court  of  tho 
estate  of  tho  testatrix,  by  which  settlement  it  appeared,  that  the 
distributive  share  of  Aaron  Ely  was  only  79  dolls.  83  3-4  cts.  in- 
stead of  8120,  the  sum  paid.  To  recover  back  the  surplus  over- 
paid, viz.  40  dolls.  10  1-4  cts.  Norton,  the  executor,  on  the  20th 
of  January,  1821,  brought  an  action  of  debt  against  Ely  before  a 
justice  of  the  peace.  To  this  action,  Ely,  the  defendant  below, 
pleaded  the  general  issue  and  the  statute  of  limitations.  Upon 
the  trial  before  the  justice,  a  judgment  was  rendered  in  favour 
of  Norton,  the  executor,  for  $53.  From  this  judgment  Ely  ap- 
pealed to  the  Common  Pleas  of  the  county  of  Monmouth,  and 
by  that  court  the  judgment  of  the  justice  was  affirmed,  and 
thereupon  a  certiorari  was  taken  to  this  court. 

Wood  now  moved  to  reverse  the  judgment  of  the  Common 
Pleas,  upon  the  ground,  that  if  the  executor  had  a  right  to  re- 
cover the  money  back,  (which  he  denied)  that  right  commenced 
the  moment  the  money  was  paid,  viz.  in  1810.  Then  the  causo 
of  action,  if  there  was  any,  accrued;  and  the  plaintiff  having 
suffered  six  years  to  elapse  since  the  cause  of  action  accrued,  was 
now  barred  by  the  statute  of  limitations  from  recovering  it. 

But  it  may  bo  said,  that  the  mistake  was  not  discovered  until 
1817,  tho  time  of  tho  settlement  before  the  Orphans' Court.  But 
although  tho  mistake  bo  discovered  afterwards,  yet  the  statute 
begins  to  run  from  the  time  the  money  was  paid.  This  position 
is  supported  by  the  case  of  Bree  v.  Ifolbech,  Doug.  655,  and 
Read  v.  Markle,  3  John.  524.  If  there  had  been  fraud,  Lord 
Mansfield  thinks  it  would  have  been  different,  but  even  there,  I 
think,  be  has  gone  too  far.* 

Swing  and  Wall,  contra,  contended,  that  the  executor's  right 

* '  Sedvide  3  Mats.  Rep.  201.  Where  to  a  plea  of  the  statute  of  limitations  the 
plrintiff  replied  fraud  and  deceit,  and  that  the  action  was  commenced  within 
nil  year*  after  the  discovery  of  the  fraud,  the  replication  was  held  good,  and 
th-  court  Raid,  that  the  statute -did  not  become  a  bar  till  six  years  after  the 
fraud  was  discovered.  See,  also,  3  Pere  Wil.  143;  1  Chit.  Plead.  556,  note  3d 
American  edition.  REPORTER. 


SEPTEMBER  TERM,  1822.  189 

Ely  v.  Norton. 

of  action  did  not  accrue  until  the  settlement  before  the  Orphans' 
Court  in  1817,  and,  therefore,  was  not  barred  by  the  statute  of 
limitations.  The  money,  they  said,  was  advanced  by  the  execu- 
tor to  Ely,  not  upon  any  settlement,  but  merely  to  accommodate 
Ely,  the  legatee.  If  the  executor  bad  a  right  to  recover  the 
money  overpaid,  immediately  upon  paying,  yet  that  right  could 
not  be  complete  until  the  settlement  before  the  Orphans'  Court 
rendered  the  amount  to  which  the  legatee  was  entitled  manifest. 
2  South.  426,  Executors  of  Harris  v.  Harris.  The  case  from  3 
John.  524,  did  not  bear  out  the  position  of  the  gentleman, 
because,  in  that  case,  the  execution  was  a  nullity. 

FORD  J.  In  this  case  there  was  a  payment  made,  in  1810,  to 
a  residuary  legatee  of  $120.  In  1816,  the  executor  settled  his 
account  in  the  Orphans'  Court,  and  it  then  appeared,  that  the 
sum  to  which  the  residuary  legatee  was  entitled  was  only  $79. 
Four  or  five  years  after  this,  the  executor  brought  an  action 
against  the  legatee  to  recover  the  surplus.  The  legatee  pleaded 
the  statute  of  limitations,  and  contended,  that  the  cause  of  action 
accrued  in  1810.  Judge  Rossell  and  myself  are  of  opinion,  that 
the  cause  of  action  accrued  in  1810,  and  is,  therefore,  barred  by 
the  statute  of  limitations,  consequently  the  judgment  of  the 
Common  Pleas  must  be  reversed. 

KIRKPATRICK  C.  J.  said,  he  thought  that  account  in  the  Or- 
phans' Court  was  to  be  considered  as  perfect  in  all  its  forms,  as 
long  as  it  remained  unreversed,  and,  therefore,  that  being  perfect 
in  items,  time,  &c.  it  appeared  to  him,  that  paying  the  money  to 
the  legatee  before  the  settlement  could  be  considered  only  as  an 
advancement,  trust,  or  deposit  to  wait  the  result  of  such  settle- 
ment. However,  I  am  satisfied  with  the  opinions  declared  by 
my  brethren ;  perhaps  it  is  all  right. 

Judgment  reversed. 

CITED  IB  Den.  v.  Young,  7  Hal.  307.     Tichenor  v.  Hewson,  2  Or.  29. 


190  NEW  JERSEY  SUPREME  COURT. 


Cattel  v.  Warwick. 


JAMES  CATTEL  againtt  RICHABD  E.  WARWICK. 

A  purchase  of  the  equity  of  redemption  by  the  mortgagee  is  not  an  extin- 
guishment of  the  attendant  bond,  and,  therefore,  in  an  action  of  assumpsit  by 
the  mortgagor  against  the  mortgagee  for  goods  sold,  the  mortgagee  may  set  on 
his  bond,  notwithstanding  his  purchase  of  the  equity  of  redemption. 

This  cause  came  before  the  court  on  a  writ  of  error  directed 
to  the  Common  Pleas  of  Gloucester  county.  Warwick,  the  do 
fendant  in  error,  had  prosecuted  Cattel  in  an  action  of  assumpsit 
for  goods  sold.  Cattel  plead  the  general  issue,  and  gave  notice 
of  offset.  Upon  the  trial  before  the  Common  Pleas,  a  number 
of  questions  were  raised,  and  bills  of  exceptions  taken  to  the 
opinion  of  the  court.  But  the  question  upon  which,  the  cause 
turned  in  the  Supreme  Court,  and  which,  alone,  it  is  thought 
necessary  to  notice,  arose  upon  the  following  facts.  After  the 
plaintiff  had  rested  his  cause,  Cattel,  the  defendant,  "to  maintain 
and  prove  the  issue  on  his  part,  offered  two  certain  bonds,  executed " 
by  Warwick,  the  plaintiff,  to  Cattel,  the  defendant,  dated  15lh 
February,  1816,  one  conditioned  for  the  payment  of  $500,  on  or 
before  the  25th  March,  1817 ;  the  other  conditioned  for  the  pay 
ment  of  $1100,  on  or  before  the  25th  September,  1818;  the  exe- 
cution of  which  bonds  the  plaintiff  admitted.  But  to  the  admis- 
sion of  these  bonds  in  evidence,  the  counsel  for  the  plaintiff 
objected,  and  offered  to  shew  to  the  court  that  the  said  two  bonds, 
together  with  another  bond  for  the  sum  of  $700,  payable  on  the 
1st  May,  1816,  were  given  by  the  plaintiff  to  the  defendant,  for 
the  consideration  money,  or  price  of  a  certain  tavern-house  and 
plantation,  sold  by  the  defendant,  Cattel,  to  the  plaintiff,  War- 
wick; and  that,  to  secure  the  paj'mont  of  the  said  several  bonds, 
Warwick  gave  to  Cattel  a  mortgage  of  the  same  date,  on  the  said 
tavern-house  and  plantation;  that  in  the  term  of  October,  1816, 
Caltel  entered  up  judgment  on  the  first  bond,  for  6700,  by  virtue 
of  a  warrant  thereto  annexed;  and  that  on  the  9th  day  of 
November,  1816,  he  issued  out  an  execution  of  fieri  facias  de  bonis 
et  terris,  by  virtue  of  which  the  sheriff  levied  on  the  equity  of 
redemption  of  Warwick  in  the  mortgaged  premises,  and  after- 
wards, on  the  4th  August,  1817,  sold  all  the  estate  of  Warwick 
in  the  8aid  mortgaged  premises,  subject  to  all  legal  incumbranccs, 
for  the  sura  of  8798,  and  conveyed  the  said  premises  to  Cattel 
by  deed,  executed  according  to  law,  and  bearing  date  the  16th 


SEPTEMBER  TERM,  1822.  191 

Cattel  v.  Warwick. 

of  August,  1817,  which  said  several  facts,  so  offered  in  evidence 
on  the  part  of  the  plaintiff,  Warwick,  were  admitted  by  Cattel, 
the  defendant;  whereupon  the  counsel  for  the  plaintiff  insisted, 
that  inasmuch  as  the  defendant  had  entered  judgment  on  one  of 
the  bonds  mentioned  in  the  mortgage,  and  sued  out  execution, 
and  caused  the  equity  of  redemption  of  the  plaintiff  in  the  mort- 
gaged premises  to  be  levied  on  and  sold,  to  satisfy  part  of  the 
mortgage  debt,  and  he  himself  became  the  purchaser  thereof, 
subject  to  the  said  mortgage;  that  the  land  became  debtor  to 
the  money,  and  the  said  bonds  or  debts,  as  between  the  mort- 
gagor and  mortgagee,  became  extinguished,  and,  therefore,  that 
the  said  several  bonds,  so  offered  in  evidence,  were  not  a  subsist- 
ing debt  due  from  the  plaintiff  to  the  defendant,  and  could  not  be 
offset  in  this  action ;  whereupon  the  counsel  for  the  defendant 
.insisted,  that  the  said  several  bonds,  so  offered  in  evidence,  were 
lawful  evidence,  and  prayed  that  the  same  might  be  admitted  as 
a  lawful  offset  in  the  cause  under  his  notice.  But  the  court  de- 
clared the  said  bond's  inadmissible  evidence,  and  overruled  the 
same ;  and  the  counsel  of  the  defendant  took  a  bill  of  exceptions 
to  this  opinion  of  the  court.  The  jury  found  a  verdict  of  §242 ; 
and  now  the  error  assigned  for  the  reversal  of  this  judgment  of 
the  Common  Pleas,  was  the  rejection  of  these  two  bonds  as  evi- 
C.ence  on  the  part  of  the  defendant. 

Armstrong,  for  plaintiff  in  error,  contended,  that  the  bonds 
ought  to  have  been  admitted  in  evidence,  because  they  were  legal 
and  subsisting  claims  against  the  plaintiff,  and  were  not  extin- 
guished by  the  purchase  of  the  mortgaged  premises  by  Cattel, 
upon  the  sale,  under  his  judgment  on  the  first  bond.  He  did  not 
feel  disposed  to  contend,  that,  in  equity,  the  debt  might  not  be 
considered  as  extinguished,  but  no  court  of  law  could  say,  that 
these  bonds  were  extinguished  by  these  circumstances.  In  Hatch 
v.  White,  2  Gallison  152,  it  was  determined,  that  after  "a  fore- 
closure of  a  mortgage,  the  mortgagee  may  still  recover  at  law, 
upon  the  attendant  bond  or  note,  the  deficiency  of  the  mortgaged 
property  to  pay  the  debt  due."  This  case  fully  sustained  the  dis- 
tinction between  the  construction  given  to  these  instruments  ac- 
companying mortgages,  by  the  courts  of  equity  and  courts  of 
law,  and  establish  the  position,  that  a  foreclosure  is  no  bar  to  an 
action  upon  the  attendant  bond.  If,  then,  Cattel,  upon  a  fore- 
closure of  his  mortgage  and  a  sale  of  the  mortgaged  premises, 


192  NEW  JERSEY  SUPREME  COURT. 

Cattel  v.  Warwick. 

without  raising  sufficient  thereby  to  pay  his  mortgagee,  would 
not  bo  prevented  from  prosecuting  on  His  bond,  why  should  he 
in  this  case,  where  the  property  was  sold  and  purchased  by  him 
for  less  than  the  mortgage  debt?  And  if  he  might  prosecute 
the  plaintiff  at  law  upon  these  bonds,  then  they  are  good  as  an 
offset,  and  ought  to  have  been  admitted. 

Swing,  on  same  side,  cited  2  Powell  on  Mortgages  1075,  case  of 
Tooke  v.  Hartley,  also  reported  2  Bro.  Cha.  Sep.  126,  and  the 
case  of  Perry  v.  Parker,  8  Ves.  528. 

Wall,  contra.  In  England,  an  equity  of  redemption  is  beyond 
the  control  of  a  court  of  law.  It  exists  only  in  a  court  of  equity, 
and,  therefore,  the  cases  from  the  English  books  do  not  apply, 
because  an  actual  foreclosure  of  the  equity  of  redemption  is  an  ex 
tinguishment  of  the  accompanying  bond.  I  admit,  that  whore  tho 
mortgagee  afterwards  proceeds  on  his  bond,  that  is  considered  as 
opening  the  foreclosure  of  the  equity  of  redemption.  There  is  no 
case  to  be  found  in  the  English  books  in  -tfhich  the  mortgagee, 
holding  the  property  in  possession  by  an  absolute  foreclosure,  has 
a  right  to  proceed  upon  his  bond,  until  he  has  taken  tho  property 
into  market  and  sold  it,  without  such  prosecution  of  the  bond  bo 
ing  considered  as  an  opening  of  the  foreclosure.  8  Ves.  527.  In  tho 
case  from  Vesey,  after  an  absolute  foreclosure  of  the  mortgage 
and  tho  sale,  the  party  was  not  permitted  to  proceed  on  the  bond 
to  recover  the  difference  at  law.  1  admit,  that  since  that  case  in 
England,  the  doctrine  has  been  settled  the  other  way.  But  the 
court  will  recollect,  that  there  the  equity  of  redemption  cannot 
be  reached  at  law.  But  in  this  state  it  is  different;  here  tho  equity 
of  redemption  is  considered  the  legal  estate;  it  may  be  taken  on 
execution ;  it  has  a  legal  existence,  and  may  be  reached  by  legal 
process.  May  not  this  manner  of  considering  equities  of  redemp- 
tion in  this  state,  introduce  a  new  rule,  founded  upon  general 
principles?  Are  we  not  at  liberty  to  form  rules  adapted  to  the  ex- 
igencies of  society  ?  or,  must  we  be  fettered  by  principles  drawn 
from  English  books,  which  have  no  application  here  ?  There  was 
no  objection  to  the  execution  of  the  bonds  at  the  time  they  were 
offered  in  evidence  us  an  offset.  The  simple  question  was, 
whether  when  a  man  gives  a  bond  and  warrant  of  attorney,  and 
enters  up  judgment  upon  one  of  tho  bonds,  and  seizes  upon  tho 
mortgaged  property  and  sells  it,  it  was  an  extinguishment  of  tho 


SEPTEMBER  TERM,  1822.  193 

Cattel  v.  Warwick. 

other  bond.  In  New  Jersey,  the  mortgagee  has  three  remedies: 
first,  by  ejectment ;  second,  on  the  bond ;  third,  by  bill  to  fore- 
close. But  all  these  modes  are  intended  to  accomplish  the  same 
object,  to  enable  the  mortgagee  to  recover  the  debt.  But  where 
he  has  taken  the  fund,  viz.  the  equity  of  redemption,  which  was 
intended  for  the  payment  of  the  debt,  he  cannot  be  permitted  to 
proceed  upon  the  bond.  The  great  difference  between  equity 
and  law,  is  the  mode  of  arriving  at  proof,  but  where  the  proof  is 
ascertained,  can  there  be  any  difference  in  the  application  of 
general  principles  ?  What  is  the  right  which  a  purchaser  at  public 
sale  acquires?  He  purchases  only  subject  to  the  mortgage;  but 
if  the  mortgagee  himself  purchases,  can  he  be  in  a  better  situa- 
tion ?  Suppose  Cattel  had  given  twenty  dollars  for  the  equity  of 
redemption,  could  he  hold  the  redemption  for  that  sum,  and  pur- 
sue the  bond  also  ?  In  New  York,  the  equity  of  redemption  is 
reached  by  execution,  as  in  this  state,  and,  therefore,  the  deci- 
sions of  their  courts  are  entitled  to  more  deference  than  any 
English  cases.  2  John.  Ch.  125.  3  Ib.  55.  In  this  last  case,  the 
purchaser  had  bought  in  the  equity  of  redemption,  and  after- 
wards takes  an  assignment  of  the  mortgage  debt;  there,  the 
Court  of  Chancery  hold,  that  it  is  an  extinguishment  of  the  mort- 
gage; here  the  equity  of  redemption  is  the  legal  estate;  but  in 
England  it  is  considered  as  the  equitable  estate.  See  the  case  in 
Chancery  of  this  state  of  Crane  &  Williamson,  where  this  doctrine 
was  held  by  the  chancellor. 

Ewing,  in  reply,  said,  it  is  contended  that  the  fact  stated  in 
the  bill  of  exceptions  operated  as  a  complete  extinguishment  in 
law  of  the  right  of  Cattel  to  recover  upon  these  bonds,  and  that, 
therefore,  they  could  not  be  received  as  an  offset.  But  he  con- 
tended, that  in  a  court  of  common  law  the  obligee  had  a  full  and 
complete  right  to  prosecute  upon  the  bonds,  and  that  the  circum- 
stances stated  in  the  bill  of  exceptions  were  not  an  extinguish- 
ment of  the  bonds,  whatever  might  be  the  rule  in  equity.  The 
cases  cited  from  Johnson  are  cases  of  application  to  Chancery. 
Let  us  suppose  that  Cattel  had  prosecuted  Warwick  at  law  upon 
the  bonds,  could  Warwick  set  up  these  circumstances  as  a  defence  ? 
No!  it  is  in  equity  only  that  he  could  make  any  such  defence, 
and  I  shall  shew  hereafter,  that  he  could  not  avail  himself 
of  it,  even  in  equity.  But  the  opinion  of  Judge  SUny,  in  Gal- 

VOL.  i.  N 


194  NEW  JERSEY  SUPREME  COURT. 

Cattel  v.  Warwick. 

lison,  is  express  that  such  a  defence  could  not  be  set  up  at  com- 
mon law.  However  it  may  be  with  regard  to  the  effect  of  a 
purchase  of  this  kind  in  equity,  there  is  no  power  in  a  court  of 
common  law  which  can  preclude  the  party  holding  the  bond  from 
proceeding  to  recover  it.  But,  even  in  a  court  of  equity,  the 
person  holding  the  bond  would  be  at  liberty  to  proceed.  It  is 
true  some  difference  exists  in  our  mode  of  proceedings  as  to 
equity  of  redemptions,  and  that  of  the  proceedings  in  England. 
But  if  in  England,  after  a  foreclosure,  the  mortgagee  may  pro- 
ceed upon  the  bond,  much  more  may  he  in  this  state,  where  he 
has  merely  purchased  the  equity  of  redemption.  It  is  said,  that 
the  foreclosure  in  England  is  an  extinguishment  of  the  debt,  but 
this  position  is  incorrect.  The  cases  are  all  reviewed  by  Judge 
Story  in  2  Gallison,  and  he  comes  to  the  conclusion,  that  not- 
withstanding the  foreclosure,  and  notwithstanding  the  sale,  the 
mortgagee  may  proceed  upon  the  bond. 

Per  curiam.  We  are  of  opinion  that  the  judgment  must  bo 
reversed.  The  purchasing  of  the  equity  of  redemption  does  not 
cancel  the  bonds;  therefore  they  ought  to  have  been  admitted 
as  a  legal  set-off.  What  equities  may  arise,  is  another  question ; 
as  to  these,  the  defendant  must  seek  relief  in  a  court  of  equity. 

CITED  is  Sloan  v.  Sommers,  2  Or.  609,  615. 


SEPTEMBER  TERM,  1822.  195 

Dickerson  v.  Robinson. 

MAHLON  DICKERSON,  Ordinary,  &c.,against  ANN  ROBINSON,  HENRY 
FREAS,  ROBERT  VAN  MATER,  and  HOWELL  POWELL. 

1.  The  power  of  administrators  is  joint  only,  they  must  sue  and  be  sued 
jointly,  appear  and  plead  jointly;   they  cannot  plead  severally  as  executors 
may;  and  judgment  against  them  must  be  in  their  joint  capacity. 

2.  The  non-payment  of  a  void  judgment,  cannot  be  assigned  as  the  breach 
of  the  condition  of  the  administration  bond,  in  order  to  subject  them  or  their 
sureties,  to  the  payment  of  it. 

3.  A  creditor  cannot  sue  an  administration  bond,  and  assign  for  breach  of 
the  condition  thereof,  the  non-payment  of  a  debt  upon  a  demand  in  pais;  nor 
even  upon  a  judgment  at  common  law,  and  a  devastavit  upon  it. 

4.  But  he  may  sue  an  administration  bond  in  order  to  obtain  a  complete  and 
perfect  inventory.     And  he  may  assign  as  a  breach,  the  not  rendering  a  true 
and  perfect  inventory  of  the  estate  of  the  intestate ;  but  he  cannot  sue  the  bond 
and  get  judgment  upon  it  lor  his  own  individual  debt. 

5.  If  the  administrator  made  &  final  settlement  in  the  Orphans'  Court,  and  a 
confirmatory  decree  of  said  court  was  passed  upon  it,  then  the  balance  found 
in  the'  hands  of  the  administrator,  is  a  surplus,  to  be  distributed  according  to 
the  statute.     But  there  can  be  no  such  final  settlement  until  all  the  debts  known, 
exhibited  and  allowed,  are  paid.     But  if  the  settlement  was  not  such  final 
settlement,  then  the  creditor  may  assign  for  breach  of  the  condition,  the  not 
making  a  true  and  just  account  of  the  administration. 

The  facts  of  this   case   sufficiently  appear  in   the  opinions 
delivered. 

Kinsey  for  plaintiffs.    Jeffers  for  defendants. 

KIRKPATRICK  C.  J.     This  is  a  case  settled  by  the  parties,  and 
has  been  twice  argued.    The  facts  stated,  are  these,  that  is  to  say, 

1.  Nov.  3,  1807,  Ann  Robinson  and  Henry  Freas,  having  been 
appointed  administrators  of  Samuel  Robinson,  dec.  together  with 
Robert  Van  Mater  and  Howell  Powell,  as  their  sureties,  executed 
this  bond  to  the  Ordinary  in  the  penal  sum  of  ten  thousand 
dollars,  conditioned  for  the  due  administration  of  the  estate  in 
the  usual  form. 

2.  March  11, 1807,  Samuel  Robinson,  the  intestate,  and  Joseph 
Robinson,  had  give  their  joint  and  several  bond  to  Ebenezer  Gas- 
kill  and  John  Jones,  in  the  penalty  of  one  thousand  dollars,  con- 
ditioned for  the  payment  of  five  hundred  dollars,  with  interest. 

3.  In  December  term,  1819,  Ann  Robinson  and  Henry  Freas 
made  a  settlement  of  their  accounts,  as  administrators,  in  the 
Orphans'  Court  of  the  county  of  Salem,  upon  which  there  was 
found  in  their  hands,  the  sum  of  $2378.59. 

4.  In  March  term,  1812,  Henry  Freas  settled   his   separate 
account  of  the  said  administration  in  the  same  court,  upon  which 
it  was  found  that  there  was  due  to  him  from  the  said  estate,  the 


196  NEW  JEKSEY  SUPJREME  COURT. 

Dickerson  v.  Robinson. 

sum  of  $440.19.     It  is  supposed  this  is  his  account  of  the  balance 
found  in  the  hands  of  the  administrators  on  the  settlement  of  1807.* 

5.  In  September  term,  1815,  John  Jones,  who  had  survived 
Ezekiel  Gaskill,  having  first  demanded  the  payment  of  his  bond 
from  the  said  administrators,  and  the  same  having  been  refused, 
and    having  thereupon   prosecuted   his  suit   for  the  recovery 
thereof,  obtained  a  judgment  in  the  same  court  against  the  said 
Ann  Robinson  and  Henry  Freas,  as  administrators  as  aforesaid, 
for  the  sum  of  $382.93.  This  judgment  was  obtained  and  entered 
in  this  wise,  that  is  to  say,  the  action  was  commenced  by  sum- 
mons, upon  which,  Henry  Freas,  was  returned  summoned,  and 
Ann  Robinson,  non  est  inventus,  Henry  Freas  pleaded  separately 
for  himself,  plene  administravit,  and  by  the  jury  it  was  found  for 
him,  and  the  sum  due  to  the  plaintiff  upon  his  bond,  was  found 
to  be  $382.93,  upon  which  judgment  was  entered  against  him, 
Freas,  of  goods  quando  acciderint,  and  against  Ann  Robinson, 
who  had  neither  been  summoned  nor  appeared,  of  the  goods  of 
the  intestate,  si,  et  si  non  tune,  &c.  the  costs  of  her  own  proper 
goods.     Execution  was  duly  issued  upon  this  judgment  against 
Ann  Robinson,  and  returned  nulla,  &c. 

6.  Then  this  action  is  brought  by  Jones,  by  the  permission  of 
the  Ordinary,  upon  the  administration   bond,  to  recover  the 
amount  of  this  judgment;   and  the   only  breach  assigned,  to 
which  the  facts  admitted  have  any  relation,  is,  that  the  said 
administrators  have  not  paid  the  said  judgment. 

Upon  this  case  I  observe,  that  the  course  of  proceeding  has 
been  altogether  misconceived,  for 

1.  In  the  first  place,  though  it  is  well  settled  that  co-execu- 
tors are  not  liable  for  the  waste  of  each  other,  and  that,  therefore, 
each  may  plead  separately  and  specially  to  shew  this  matter  and 
to  exonerate  himself,  yet  it  is  not  so  with  co-administrators;  their 
power  is  joint  only,  and  not  joint  and  several,  like  that  of  co- 
executors;  they  must  act  jointly,  they  must  sue  and  be  sued 
jointly,  they  must  appear  and  plead  jointly;  or  if  one  only  be 
summoned,  and  the  other  returned  non  est  inventus,  he  that  is  sum- 
moned may,  and  indeed  must,  by  statute,  plead  for  both,  but  the 
plea  must  be  joint,  and,  therefore,  the  judgment  for  or  against 
them,  must  be  their  joint  capacity.  The  waste  of  one  is  the 
waste  of  all,  so  far  at  least  as  relates  to  creditors  and  next  of 
kin;  their  remedies  against  one  another  is  a  different  thing. 


SEPTEMBER  TERM,  1822.  197 

Dickerson  v.  Robinson. 

It  has  been  insisted,  with  some  degree  of  zeal,  in  the  argument, 
that  though  this  may  be  the  ancient  principle  contained  in  the 
books,  yet  the  principle  is  altered  by  our  act  of  March  2,  1795, 
entitled  "  an  act  concerning  executors,  and  the  administration 
and  distribution  of  intestates'  estates."  In  the  eighth  section  of 
that  act  it  is  said,  "  that  all  administrators,  of  whatever  kind  or 
description  they  may  be,  shall  have  actions  to  recover,  as  ex- 
ecutors, the  debts  due  to  the  person  deceased,  and  shall  answer 
to  others,  to  whom  such  deceased  person  was  holden  or  bound, 
in  the  same  manner  as  executors  shall  answer,  and  shall  be  ac- 
countable, as  executors  be  in  case  of  testament,  as  well  of  the 
time  past  as  of  the  time  to  come."  And  it  is  insisted,  that  this 
section  places  administrators  upon  the  same  footing  as  executors, 
as  to  their  appearing  and  pleading  severally,  and  having  several 
judgments  against  them.  But  I  incline  to  think  this  is  a  total 
misapprehension  of  the  true  intent  of  that  section. 

It  is  well  known  that  the  office  of  administrator,  as  it  is  now 
understood,  did  not  exist  in  the  ancient  common  law.  It  was  in- 
troduced by  the  31  Edward  III.  which  makes  it  obligatory  upon 
the  Ordinary  to  depute  the  next  and  most  lawful  friends  of  the 
deceased  to  administer  his  goods,  and  in  order  to  enable  them  to 
do  so,  gives  them  the  same  actions  as  executors  have,  and  makes 
them  accountable  as  executors  are.  Without  this  last  provision 
in  their  favour,  the  administrators  could  neither  have  sued  nor 
been  sued  touching  the  intestate's  estate ;  for,  as  we  are  told,  all 
the  actions  which  an  administrator  can  have  are  given  by  statute, 
for  the  common  law  took  no  notice  of  administrators.  Now  the 
section  of  our  act  under  consideration,  is  intended  merely  to  sup- 
ply the  place  of  that  ancient  statute  in  this  respect,  and  is  ex- 
pressed in  nearly  the  same  words.  But,  unless  all  lawyers,  from 
the  time  of  Edward  III.  down  till  this  day,  have  been  mistaken, 
the  statute  of  Edward  never  intended  to  enable  administrators  to 
appear  and  plead  severally  and  to  have  several  judgments  against 
them.  And  by  all  right  rules  of  reason,  as  our  act  is  made  to  sup- 
ply the  place  of  that  statute,  and  nothing  more,  it  ought  to  have 
the  same  construction.  It  introduces  no  new  law;  it  changes  no 
ancient  principles.  It  may  fairly  be  assumed,  therefore,  that  there 
is  nothing  in  this  topic  of  the  plaintiff's  argument.  The  sixth  sec- 
tion of  the  same  act,  which  is  also  pressed  into  the  service  of  this 
argument,  says,  "  that,  in  actions  against  divers  executors,  they 


198  NEW  JERSEY  SUPREME  COURT. 

Dickerson  v.  Robinson. 

shall  all  be  considered  as  one  person  representing  the  testator, 
and  that  such  as  shall  be  summoned,  &c.  shall  answer  the  plain- 
tiff, and,  if  judgment  be  for  him,  it  shall  be  against  those  sum- 
moned, and  also  against  all  the  others,  of  the  goods  of  the  testa- 
tor, as  well  as  if  they  had  been  summoned  and  appeared."  This 
is  but  a  re-enactment,  in  substance,  of  the  9  Edward  III.  on  that 
subject ;  and  though  it  be  extended  to  administrators  by  the  sec- 
tion we  have  considered,  yet  it  does  not  at  all  affect  this  case ; 
for  it  is  readily  admitted,  that  if  Freas  had  put  in  a  joint  plea,  as 
well  he  might,  or  even  suffered  judgment  to  pass  by  default,  that 
judgment  might,  and  indeed  must,  have  been  against  both  him- 
self and  his  co-administrator.  But  the  question  here  is  not, 
whether,  upon  one  being  summoned,  judgment  can  be  entered 
against  both  ?  but,  whether  they  can  plead  severally,  and  have 
several  judgments?  and  I  think  they  certainly  cannot.  I  do 
not  now  speak  of  costs. 

2.  In  the  second  place,  if  co-administrators,  like  co-executors, 
could  plead  separately  and  specially,  each  for  himself,  and  one 
should  be  returned  summoned,  and  the  other  non  est  inventus, 
and  he  that  was  summoned  should  plead  separately,  (as  was 
done  here)  then  they  would  stand  in  the  same  situation  as  in 
other  cases  where  there  is  a  severance  in  pleading ;  and  so  no 
judgment  could  be  entered  against  the  other  that  was  not  sum- 
moned, and  did  not  appear;  and  especially  no  such  judgment 
could  be  entered  against  him  as  admits  assets,  and  subjects  him 
to  the  return  of  a  devastavit,  either  upon  the  fi.  fa.  or  the  scire 
fieri  inquirendum. 

3.  It  will  follow,  from  these  observations,  that,  in  my  opinion^ 
this  judgment,  so  far  as  is  relates  to  Henry  Freas,  being  a  judg- 
ment of  exoneration,  in presenti,  at  least;  and  so  far  as  it  relates 
to  Ann  Robinson,  being  a  judgment  altogether  irregular,  and  as 
none,  the  non-payment  of  it  cannot  be  assigned  as  a  breach  of 
the  condition  of  the  administration  bond,  in  order  to  subject  either 
them  or  their  sureties  to  the  penalty  of  it.  It  is  said  that  as  this  is 
a  subsisting  judgment  against  Ann  Robinson,  it  must  have  its  full 
force,  and  bo  pleadable  like  all  other  judgments,  until  reversed 
upon  writ  of  error,  in  due  course  of  law.  But  if  I  am  right  in  the 
view  I  have  taken  of  it,  it  is  a  mere  misentry,  made  incautiously, 
and  without  any  proceedings  to  support  it,  and,  like  all  other  mis- 
entries  of  that  kind,  would  be  a  proper  subject  of  the  breve  de 


SEPTEMBEE  TE'ftM,  1822.  199 


Dickerson  v.  Robinson. 


corona  coram  nob,  at  the  common  law.  Now  I  certainly  need 
pot  cite  authorities  to  shew,  that  in  all  cases  where  that  writ 
would  lie  formerly,  the  court  will  now  grant  the  same  relief 
upon  motion,  or  take  notice  of  the  error  in  any  future  stage  of 
the  proceeding  which  would  carry  it  into  effect.  They  will 
never  give  operation,  in  any  form,  to  a  mere  misentry. 

But  whether  we  consider  this  judgment  against  Ann  Robin- 
son as  a  perfect  nullity,  or  as  a  regular  and  valid  judgment,  will 
make  no  difference  in  my  view  of  the  case;  for  I  take  it  to  be 
well  settled,  that  a  creditor  cannot  sue  an  administration  bond, 
and  assign  for  breach  of  the  condition  thereof,  the  non-payment 
of  a  debt  upon  a  demand  in  pais,  nor  even  upon  a  judgment  at 
common  law  and  a  devastavit  returned  upon  it.  This  has  been 
adjudged  repeatedly  upon  the  22d  and  23d  Charles  II.  which,  in 
the  condition  of  the  administration  bond,  our  act  follows  ver- 
batim, as  to  all  substantial  matters,  and  with  which,  therefore, 
it  must  have  the  same  construction. 

It  was  for  some  time  doubted  whether  a  creditor  could  sue  at 
all  on  an  administration  bond.  But  even  after  that  doubt  was 
done  away,  the  courts  still  confined  them  to  the  proper  objects 
of  the  bond. 

The  first  case  that  I  find  on  this  subject  is,  that  of  the  Arch- 
bishop of  Canterbury  v.  Brown  (1  Lutw.  882).  In  that  case  the 
defendant  pleaded  performance  as  to  every  particular  contained 
in  the  condition,  and  the  plaintiff  replied,  with  a  protestando,  that 
he  had  not  performed,  &c.  that  the  intestate  was  indebted,  by 
specialty,  to  the  assignee  of  the  bond  in  so  much,  and  that  the 
defendant,  as  his  administrator,  had  assets  in  his  hand  to  pay, 
but  had  refused  to  do  so.  To  this  replication  there  was  a 
demurrer,  and  the  demurrer  was  sustained,  because  the  Ordi- 
nary cannot  assign  for  breach  of  the  condition  of  an  adminis- 
tration bond  the  non-payment  of  a  debt. 

In  the  case  of  the  Archbishop  of  Canterbury  v.  Wills  (Salk.  315) 
Chief  Justice  Holt  says,  "  since  the  statute  of  Charles  II.  the 
condition  of  the  administration  bond  being  to  account  at  a  day 
certain,  the  administrator  must  account  at  his  peril,  and  that 
without  citation  on  suit ;  and  any  party  interested  may  come 
in  and  contest  it.  And  whereas,  by  the  words  of  the  condition, 
he  is  to  administer  well  and  truly,  that  shall  be  construed  in 
bringing  in  his  account,  and  not  in  paying  the  debts  of  the  intes- 


200  NEW  JERSEY  SUPREME  COURT. 

Dickerson  v.  Robinson. 

tato,  and,  therefore,  a  creditor  shall  not  take  an  assignment  of 
the  bond  and  sue  it,  and  assign  for  breach  the  non-payment  of  a 
debt  to  him,  or  a  devastavit  committed  by  the  administrator,  for 
that  would  be  endless  and  infinite." 

In  the  case  of  Wallis  v.  Pipon,  (Ambler  183)  Lord  Chancellor 
Hardwicke  says,  "  creditors  cannot  sue  an  administrator  on  his 
bond  taken  by  virtue  of  the  statute  of  Charles  II.  for  such 
bonds  are  only  for  the  benefit  of  the  legatees,  the  next  of  kin, 
and  persons  entitled  to  the  residue."  The  meaning  of  this  must 
be,  that  the  creditor  cannot  sue,  and  assign  the  non-payment  of 
his  debt  as  a  breach;  for  long  before  that  time  it  was  settled 
that  he  might  sue  for  an  inventory  and  account. 

In  the  case  of  Greenside  et  al.  v.  Benson  et  al.  (3  Atk.  248)  the 
defendant,  Benson,  was  a  creditor  of  the  intestate  for  £300,  with 
interest,  on  bond.  He  sued  the  administratrix  at  law  on  this 
bond,  and  she  pleaded  no  assets  ultra  £54,  which  she  paid  into 
court.  Upon  this  there  was  a  trial,  and  a  verdict,  that  the  defen- 
dant had  assets  to  £226  beyond  the  £54.  Benson  then  took  an 
assignment  of  the  administration  bond,  and  assigned  for  breach 
of  the  condition,  that  the  administratrix  had  not  made  a  true 
and  perfect  inventory,  and  had  judgment  by  default  for  the  whole 
penalty.  This  bill  is  then  brought  by  the  sureties  in  the  bond 
to  be  relieved  against  this  judgment,  but  the  lord  chancellor 
ordered  it  to  stand  as  a  security  for  so  much  as  the  inventory 
should  fall  short  of  satisfying  the  principal  and  interest  of  Ben- 
son's bond. 

Here  it  is  to  be  observed,  and  it  is  clearly  to  be  collected  from 
the  case — 1.  That  the  jury  did  not  find  the  amount  of  Benson's 
debt,  on  the  plea  of  plene  administravit  ultra,  &c.  as  they  were 
made  to  do  for  Jones  in  the  case  before  us,  but  merely  the  fact 
put  in  issue,  that  the  administratrix  had  assets  ultra  to  so  much  ; 
that  the  assets  admitted,  and  the  assets  ultra,  found  by  the  jury, 
when  added  together,  did  not  amount  to  the  plaintiff's  debt; 
and  that  the  judgment,  of  course,  was  for  the  whole  penalty  of 
the  bond. 

2.  That  Benson,  on  his  citation  on  the  administration  bond, 
did  not  assign  for  breach  of  the  condition,  the  non-payment  of 
his  judgment,  as  is  done  here,  but  the  not  exhibiting  of  a  true 
and  perfect  inventory  of  the  intestate's  estate. 

3.  That  upon  obtaining  his  judgment,  by  default,  on  this  ad- 


SEPTEMBER  TERM,  1822.  201 


Dickerson  v.  Robinson. 


ministration  bond,  he  did  not  proceed  to  have  his  particular  dam- 
ages assessed,  but  was  about  to  take  out,  or  actually  had  taken 
out,  his  execution  for  the  whole  penalty ;  and  that  upon  this  a 
bill  was  filed  in  equity,  because  the  sureties  had  no  relief  at  law. 

4.  That  the  judgment  for  the  penalty  was  to  stand,  not  for 
the  amount  of  the  assets  found  by  the  jury  in  the  hands  of  the 
administratrix,  but  for  the  whole  of  the  principal  and  interest 
due  on  Benson's  bond,  how  far  soever  it  might  exceed  the  assets; 
for  the  whole  penalty  had  become  forfeited  at  law,  and  the  chan- 
cellor could  not  relieve  against  it  upon  a  judgment  by  default, 
till  the  debt  was  fully  satisfied. 

In  this  case  the  solicitor-general,  who  argued  for  the  adminis- 
trators, puts  the  question,  whether  a  bond  taken  by  the  Ordinary, 
under  the  22d  and  23d  Charles  II.  relating  to  intestates'  estates, 
is  to  be  confined  to  the  exhibiting  of  an  inventory  for  the  benefit 
of  the  legatees  and  next  of  kin  ?  or,  whether  it  extends  to  credi- 
tors also  ?  And  he  says,  as  there  have  been  cases  determined 
upon  this  point,  it  would  be  directly  encountering  them  to  say, 
that  a  bond  within  that  statute  may  be  assigned  to  a  creditor,  and 
that  he  may  assign  the  non-payment  of  his  debt  as  a  breach. 
The  attorney-general,  on  the  other  side,  admits  this  doctrine,  so 
far  as  it  goes  to  the  non-payment  of  a  debt  being  assigned  for  a 
breach,  but  after  examining  and  animadverting  upon  the  condi- 
tion of  the  bond,  he  draws  the  conclusion,  that  a  creditor  may 
take  an  assignment  and  sue  the  bond,  and  assign  for  breach,  that 
the  administrators  had  not  made  a  true  and  perfect  inventory, 
for  he  is  interested  in  having  a  complete  disclosure  of  the  estate. 
And  the  Lord  Chancellor  Hardwicke,  in  delivering  his  opinion, 
says,  "  there  is  no  doubt  but  that  the  archbishop's  commissory, 
the  obligee,  may  assign  a  breach,  in  not  delivering  a  true  and 
perfect  inventory,  even  without  citation  ;  but  that  what  the 
solicitor-general,  the  counsel  for  the  administrators,  had  said, 
would  have  been  perfectly  right,  supposing  the  Ordinary  had 
assigned  for  breach  the  non-payment  of  the  creditor's  debt ;" 
thus  establishing  the  principle,  that  such  debt  cannot  be  assigned 
as  a  breach  on  these  bonds. 

It  is  beyond  all  controversy,  therefore,  that,  in  the  opinion  of 
Lord  Chief  Justice  Holt  and  Lord  Chancellor  Hardwicke,  a 
creditor  could  not  assign  as  a  breach  of  the  condition  of  an  ad- 
ministration bond,  either  a  judgment  at  law  against  the  adminis- 


202  NEW  JERSEY  SUPREME  COURT. 

Dickeraon  v.  Robinson. 

trator,  with  a  devastavit  returned  upon  it,  or  the  non-payment 
of  a  debt  upon  a  demand  in  pais. 

In  the  case  of  the  Archbishop  of  Canterbury  v.  House,  Cowp. 
140,  there  was  a  rule  to  shew  cause  why  the  proceedings  upon 
an  administration  bond  should  not  be  set  aside,  upon  the  ground 
that  the  archbishop  could  not  depute  a  creditor  to  sue;  but  upon 
the  strength  of  the  case  of  Greenside  et  al.  v.  Benson  et  al.  above 
cited,  as  well  as  upon  the  reason  of  the  thing,  Lord  Mansfield 
discharged  the  rule,  thus  affirming  the  rule  laid  down  in  Green- 
side's  case,  but  carrying  it  no  further.  And  in  this  case  it  is 
clear,  from  his  lordship's  argument,  that  the  breach  assigned 
was  not  the  non-payment  of  a  debt,  but  the  not  making  a  true 
and  perfect  inventory;  for  in  this,  he  says,  the  creditor  was 
most  materially  interested. 

From  these  cases,  adjudged  by  three  of  the  greatest  men  that 
ever  sat  in  the  English  courts,  I  think  it  manifestly  appears, 
that  though  a  creditor  may  sue  an  administration  bond,  in  order 
to  obtain  a  complete  and  perfect  inventory  and  account  of  the 
estate,  yet  he  cannot  sue  it,  or  get  judgment  upon  it  for  his  own 
individual  debt. 

But  suppose  it  were  otherwise,  and  that  the  creditor  could 
assign  for  breach  the  non-payment  of  his  own  debt,  and  could 
recover  a  verdict  and  judgment  for  the  amount,  what  purpose 
would  it  answer  to  him  ?  The  money  recovered  is  not  to  be  paid 
to  him ;  it  is  not  to  go  to  the  payment  of  his  debt  exclusively ;  it 
is,  by  the  very  words  of  the  act,  "to  be  applied  towards  making 
good  the  damages  sustained  by  the  not  performing  the  condition 
in  such  manner  as  the  judge  of  the  prerogative  court  shall  by  his 
sentence  and  decree  direct;"  that  is,  not  the  damages  of  the 
assignee  of  the  bond  only,  but  of  all  other  persons  interested  in 
the  estate;  for  if  it  were  of  the  assignee  only,  there  could  be  no 
need  of  any  interference  of  the  judge  of  the  prerogative  court,  or 
of  any  sentence  or  decree  about  it.  The  money  recovered,  there- 
fore, must  be  applied  by  the  judge  of  the  prerogative  court  to 
the  payment  of  all  the  debts  of  the  intestate,  in  their  order,  giv- 
ing a  preference  to  those  that  have  a  preference  by  law,  and 
making  a  ratable  distribution  among  all  others.  This  is  certainly 
the  course  of  the  ecclesiastical  courts  in  England,  which  must 
necessarily  have  been  in  the  contemplation  of  the  learned  judge 
•who  drew  this  act.  To  shew  the  more  clearly  that  the  applica- 


SEPTEMBER  TERM,  1822.  203 

Dickeraon  v.  Robinson. 

tion  of  the  money  recovered  in  these  actions  must  necessarily  be 
to  the  payment  of  all  debts,  let  us  pursue  the  thing  a  little.  Let 
us  suppose  the  administrator  to  have  wasted  the  whole  estate, 
and  to  be  himself  insolvent,  and  that  there  is  nothing  to  respond 
to  creditors  but  the  administration  bond,  shall  he  that  can  first 
get  the  assignment  of  it,  and  a  verdict  and  judgment  for  his  debt, 
even  though  it  be  a  simple  contract  debt,  swallow  up  the  whole 
penalty,  take  the  whole  money  recovered  to  himself,  and  leave 
all  other  debts,  even  of  a  superior  order,  altogether  unpaid  ?  This, 
1  think,  would  be  hardly  maintained  by  any  body;  and  it  is  to 
prevent  this  that  the  money  recovered  must  be  distributed  by  the 
judge  of  the  prerogative  court.  What  then  is  to  be  done  upon 
such  a  recovery  ?  Is  the  judge  of  the  .prerogative  court  to  divide 
the  sum  so  recovered  among  all  the  creditors,  and  so  pay  the 
assignee  of  the  bond  but  a  part  of  his  debt,  and  then  put  every 
other  creditor  to  go  through  the  same  course,  and  make  like 
division  of  what  he  may  recover?  and  if  it  be  an  estate  in  which 
there  is  a  surplus,  shall  he,  after  all,  compel  the  next  of  kin  to 
run  the  same  race?  This  would,  indeed,  as  Lord  Chief  Justice 
Holt  says,  be  endless  and  infinite. 

But  it  is  not  so.  No  such  breach  can  be  assigned.  No  such 
recovery  can  be  had.  The  law  runs  itself  into  no  such 
absurdity. 

The  condition  of  an  administration  bond  requires,  principally, 
three  things;  first,  to  make  a  true  and  pefect  inventory  and 
appraisement  of  the  goods, chattels,  and  credits  of  the  deceased; 
secondly,  to  administer  the  same  according  to  law,  and  make  a 
just  and  true  account  of  such  administration  (which,  according 
to  Lord  Holt,  is  one  and  the  same  thing,  for  the  settlement  of 
the  amount  implies  the  just  administration  of  the  goods,  and  the 
payment  of  the  debts,  without  which  it  cannot  be  made) ;  and 
thirdly,  to  pay  over  the  surplus  to  the  next  of  kin,  upon  refund- 
ing bonds.  A  failure  in  either  of  these  three  things  may  be 
assigned,  by  a  creditor,  as  the  breach  of  the  condition ;  but  I  am 
not,  at  present,  aware  of  any  other  thing  which  can  be  so  assigned. 
In  all  these  cases,  if  the  breach  be  proved,  the  recovery  must 
necessarily  be  of  the  whole  penalty,  and  not  of  any  particular 
debt,  or  individual  damages ;  the  execution  must  go  for  the 
whole  penalty;  and  the  party  against  whom  it  is,  has  no  relief 
except  in  the  Court  of  Chancery,  and  not  even  there  with- 


204  NEW  JERSEY  SUPREME  COURT. 

Dickerson  v.  Robinson. 

out  showing  a  complete  administration  of  the  estate.  And  as  the 
law,  when  well  understood,  is  perfectly  reasonable  and  just  in 
all  respects,  so  it  is  in  this  also.  The  penalty  of  the  administra- 
tion bond  is  calculated  upon  a  general  estimate  of  the  property 
of  the  deceased  ;  the  administrator  and  his  sureties  agree  to  this 
estimate  and  condition  as  completely  covering  the  value,  and  no 
more;  the  administrator  alone  collects  the  goods  and  sells  them  ; 
he  recovers  the  debts  and  receives  the  money ;  he  alone  knows 
the  condition,  the  particulars,  and  the  amount  of  the  estate;  he 
refuses  to  exhibit  an  inventory  or  to  give  an  account;  what  can 
be  more  reasonable,  then,  than  that  he  and  his  sureties  should 
pay  the  penally  which  is  but  the  estimated  value,  and  estimated 
by  themselves  too,  for  the  benefit  of  creditors  and  others  enti- 
tled? It  is  true  that  this  penalty  and  the  recovery  upon  it,  is 
generally  used  only  as  a  rod  upon  the  back  of  the  administrator, 
to  compel  him  to  do  his  duty,  and  if  he  do  so  satisfactorily  to  the 
Ordinary,  even  though  out  of  time,  it  will  not  be  exacted ;  and 
especially  here,  where,  by  the  administration,  the  same  person 
is  both  Ordinary  and  chancellor.  But  this  does  not  change  the 
principle. 

I  remember  a  case  at  the  Sussex  circuit,  some  years  ago,  in 
which  the  plaintiff  had  assigned  for  breach  on  one  of  these  bond*, 
that  the  administrator  had  not  made  a  just  and  true  account  of 
his  administration ;  and  upon  this  assignment  he  would  have  gone 
into  proof  of  his  debt,  and  of  the  property  which  came  to  the 
hands  of  the  administrator,  and  the  value  of  it,  in  order  to  shew 
that  he  had  sufficient  to  pay,  but  I  refused  both  the  one  and  the 
other,  and  it  being  proved  that  there  was  no  account  settled,  I 
directed  the  jury  to  find  the  whole  penalty,  which  they  did  do 
accordingly.  Upon  this,  though  it  was  submitted  to,  I  heard  a 
litte  murmur  at  the  bar,  which  induced  mo  to  look  into  the  mat- 
ter the  more  fully  at  chambers;  and  the  investigation  which  I 
then  made,  fully  satisfied  me  that  the  direction  was  right ;  and 
that  upon  such  an  assignment,  there  can  be  no  proof  of  the  debt, 
or  of  the  amount  of  the  estate  which  came  to  the  hands  of  the 
administrator,  or  other  matter  which  would  put  upon  the  jury 
any  thing  like  an  estimate  of  the  estate,  or  a  settlement  of  the 
account.  All  that,  belongs  to  another  tribunal. 

It  has  been  said,  in  the  course  of  the  argument,  that  as 
this  plaintiff  has  a  just  and  undisputed  debt,  and  as  the  cstato 


SEPTEMBEK  TEEM,  1822.  JOS 

Dickewon  v.  Robinson. 

of  the  intestate,  as  it  came  into  the  hands  of  the  administra- 
tors, was  abundantly  sufficient  to  pay  all  demands  against  it,  it 
would  be  a  hard  thing,  indeed,  if  the  law  did  not  afford  him  a 
remedy. 

I  would  answer  this  by  saying  that  the  law  does  afford  a  com- 
plete remedy,  but  that,  in  my  view  of  the  case,  the  plaintiff  has 
not  pursued  that  remedy. 

If  the  settlement  made  in  the  Orphans'  Court  of  the  county 
of  Salem,  in  December,  1809,  was  a  final  settlement,  that  is  a 
making  of  a  just  and  true  account  of  the  administration,  accord- 
ing to  the  condition  of  the  bond,  and  if  a  confirmatory  decree  of 
the  said  court  was  passed  upon  it,  as  from  the  case  submitted 
we  are  ready  to  believe,  then,  the  balance  found  in  the  hands  of 
the  administrators,  was  a  surplus  to  be  distributed  according  to 
the  statute ;  for  there  can  be  no  such  final  settlement  until  all 
the  debts  known,  exhibited  and  allowed,  are  satisfied  and  paid, 
because  settlement,  as  well  from  the  force  of  the  term,  as  accord- 
ing to  the  cases  cited,  implies  payment.  If  the  administrators, 
therefore,  did  pay  out  the  balance  found  in  their  hands,  upon 
debts  not  exhibited  at  the  time  of  the  settlement,  or  did  make 
such  distribution  to  the  next  of  kin,  of  the  balance  or  surplus 
found  in  their  hands,  and  did  take  and  file  such  refunding  bonds, 
they  have  done  their  duty,  and  saved  themselves  and  their  sure- 
ties from  the  penalty  of  the  administration  bond,  and  this  credi- 
tor, probably,  has  no  remedy  but  against  the  next  of  kin  on 
their  bonds  to  refund ;  but  if  the  administrators  did  not  do  so, 
he  may  assign  that  for  breach,  and  recover  against  them  and 
their  sureties.  On  the  other  hand,  if  the  settlement,  stated  in 
the  case,  was  not  such  final  settlement,  but  a  mere  exhibition  to 
shew  the  condition  of  the  estate  for  other  purposes,  then  this 
creditor  may  assign  for  breach  of  the  condition,  the  not  making 
a  true  and  just  account  of  the  administration,  and  upon  that 
assignment  may  recover  the  whole  penalty  for  his  indemnifica- 
tion. 

Upon  the  pleadings,  however,  as  they  are  entered  in  the  record, 
and  upon  the  case  stated  for  the  opinion  of  the  court,  I  think 
there  must  have  been  judgment  for  the  defendant;  but  inas- 
much as  the  case  is  in  some  degree  a  new  case,  and  the  law 
has  not  been  so  well  settled  as  it  might  have  been,  I  am  dis- 
posed to  let  in  the  plaintiff  to  amend  his  replication  and  assign- 


206  NEW  JERSEY  SUPREME  COURT. 

Dickenon  v.  Robinson. 

ment  of  breaches,  so  to  form  an  issue  which  may  be  within  the 
view  which  I  have  taken  of  the  case. 

N.  B.  How  far  he  can  be  relieved,  after  all,  without  first 
establishing  his  claim  at  law,  by  a  regular  and  valid  judgment 
against  the  administrators,  it  may  be  proper  for  the  plaintiff  to 
consider. 

ROSSELL  J.  This  was  a  suit  brought  on  the  administration 
bond  of  Robinson  and  Freas,  administrators,  and  Van  Mater 
and  Powell,  sureties,  by  a  creditor,  to  recover  the  amount  of  a 
judgment  on  a  bond  held  by  him,  against  the  testator.  The  ad- 
ministration bond  was  taken  in  conformity  to  our  statute,  passed 
in  1795.  Pat.  1556,  sec.  11.  In  the  condition  of  said  bond,  it  is 
proved,  "  that  administrators  should  make  a  true  and  perfect 
inventory  of  all  the  goods,  chattels,  &c.  of  the  intestate,  and  well 
and  truly  administer  according  to  law,  and  make  a  just  and  true 
account  of  their  administration,  &c.  and  deliver  and  pay  unto 
such  person  or  persons,  respectively,  as  is,  are,  or  shall  by  law  be 
entitled  to  receive  the  same." 

This  language  appears  sufficiently  comprehensive  to  secure 
the  interest  of  all  who  have  a  legal  right,  to  expect  a  benefit 
from  the  estate  of  the  intestate,  whether  creditors,  or  next  of 
kin,  entitled  to  a  distributive  share.  An  administrator  is  to  sell 
the  personal  estate  of  the  testator,  to  recover  debts  due,  and  pay 
all  legal  demands  against  it,  and  settle  his  accounts  in  the  Orphans' 
Court,  that  distribution  of  the  remainder  may  be  made  to  those 
who  by  law  are  entitled  to  it.  And  should  any  person  suppose 
himself  aggrieved  by  a  non-performance  of  those  conditions,  his 
legal  remedy  would  be  a  prosecution  on  the  bond.  But  it  is 
alleged  by  the  defendants,  that  this  bond  is  given  for  the  benefit 
of  the  next  of  kin  only ;  that  it  is  copied  from  the  statute  22 
and  23  Charles  II.  chap.  10;  and  that  the  construction  given  by 
the  English  courts  to  that  statute,  will  be  necessarily  followed 
by  this  court ;  and  no  creditor  as  such,  can  in  England,  prose- 
cute on  such  bond,  and  assign  as  a  breach  of  the  condition,  the 
non-payment  of  a  debt  or  a  devastavit.  In  support  of  this  posi- 
tion, they  cite  3  Mod.  61.  1  Salk.  Ambler  183.  2  Burns'  Eccl.  Law 
641.  Toller's  Law  of  Executors  496.  In  3  Mod.  61,  the  pass- 
age relied  on  by  the  defendant,  it  is  said,  "  there  can  be  no 
remedy  on  the  bonds  of  administrators,  until  the  Ordinary  hath 


SEPTEMBER  TERM,  1822.  207 

Dickerson  v.  Robinson. 

appointed  distribution."  If  this  was  ever  law,  it  has  since  been 
overruled ;  as  the  right  of  persons  interested,  even  creditors,  to 
sue  on  such  bonds  in  the  name  of  the  Ordinary,  to  compel  the 
administrator  to  file  an  inventory  of  the  intestate's  estate,  has 
been  repeatedly  recognized.  In  Toller's  Law  of  Ex'rs,  496,  it  is 
laid  down,  the  words  "  he  (the  administrator)  is  well  and  truly  to 
administer,"  are  construed  to  apply  merely  to  the  bringing  in  of 
the  inventory.  It  is  then  added, "  creditors  have  no  right  to  sue  on 
the  bond,  for  the  court  cannot  compel  the  payment  of  debt."  The 
writer  is  speaking  of  the  Ecclesiastical  Court,  which  had  no  com- 
mon law  jurisdiction,  nor  power  to  interfere,  as  between  creditor 
and  debtor.  Ambler  183 — Lord  Chancellor  Hard wicke  says, "  that 
creditors  cannot  sue  an  administrator  on  bonds  taken  by  virtue 
of  the  statute  of  Charles  II.  for  such  bonds  are  intended  only 
for  the  benefit  of  the  next  of  kin,  and  persons  entitled  to  the 
residue."  1  Comyns,  cites  only  the  case  from  3  Salfc.  316.  It  is 
laid  down,  "that  he  shall  well  and  truly  administer,  shall  be  con- 
strued in  bringing  in  his  accounts,  and  not  paying  the  debts  of 
the  intestate,  and  therefore  a  creditor  shall  not  take  an  assign- 
ment of  the  bond  and  sue  it,  and  assign  for  a  breach  the  non- 
payment of  a  debt  due  to  him  on  a  devastavit,  for  that  would  be 
needless  and  infinite." 

These  authorities  are,  apparently,  founded  on  the  statute  of  the 
22  and  23  Charles  II.  and  in  aid,  it  is  said,  of  some  authorities  of 
the  Ecclesiastical  Court.  That  statute  was  passed  in  1670,  for  the 
better  settling  of  intestates'  estates,  and  declares,  that  all  Ordi- 
naries and  ecclesiastical  judges,  having  power  to  grant  letters 
of  administration,  shall  take  bonds  of  the  administrators,  so 
appointed,  with  two  or  more  able  sureties,  in  the  name  of  the 
Ordinary,  in  the  form  of  which  ours  is  a  copy. 

And  the  said  Ordinaries  shall  call  such  administrators  to 
account  for  and  touching  the  goods  of  any  person  dying  intes- 
tate, and  make  a  just  and  equal  distribution  of  what  remained 
clear  (after  all  debts  first  allowed  and  deducted)  among  those 
who  by  law  are  entitled  to  it,  and  compel  such  administrator  to 
pay  the  same  by  the  due  course  of  the  ecclesiastical  law. 

The  eighth  section  enacts,  to  the  end,  that  due  regard  be  had 
to  creditors,  that  no  distribution  shall  be  made  until  a  year  from 
the  testator's  death  has  expired,  and  that  those  to  whom  any 
share  is  allotted,  shall  give  bond  with  sureties,  to  pay  back  to 


208  NEW  JERSEY  SUPREME  COURT. 

Dickerson  v.  Robinson. 

the  administrator,  in  ratable  proportions,  any  debts  that  shall 
after  appear  to  bo  due  from  the  estate  of  the  testator,  to  enable 
him  to  pay  the  same. 

In  1677,  the  30  of  Charles  II.  an  act  was  passed  to  enable 
creditors  to  recover  their  debts  of  executors  and  administrators 
of  executors  and  administrators  in  their  own  wrong,  who  had 
been  possessed  of  wasted,  or  converted  to  their  own  use  the  per- 
sonal, estate  of  other  dead  persons,  in  the  same  manner  as  they 
might  have  done  if  their  testator  or  intestate  had  been  living. 
And  in  the  4  and  5  of  William  and  Mary,  this  act  was  revived  and 
extended  to  executors  and  administrators  of  executors  and 
administrators  of  right. 

In  1685,  fifteen  years  after  the  1  of  James  II.  the  statutes  of 
22  and  23  of  Charles  II.  were  revived,  made  perpetual,  and 
enlarged,  provided  always,  that  no  administrator  shall  be  cited 
to  any  courts  in  the  last  named  acts  mentioned,  (viz.  the  pre- 
rogative and  other  ecclesiastical  courts)  to  render  an  account  of 
the  personal  estate  of  his  intestate,  unless  it  be  at  the  instance 
or  prosecution  of  some  person  in  behalf  of  a  minor,  or  having  a 
demand  out  of  such  estate,  as  a  creditor  or  next  of  kin,  nor  be 
compelled  to  account  before  any  of  the  Ordinaries  or  judges, 
otherwise  than  as  aforesaid. 

The  foregoing  are  the  acts  of  the  parliament  of  England,  on 
which  the  decisions  relied  on  by  the  defendants  are  founded; 
but  even  there,  in  Cowp.  140,  Lord  Mansfield  says,  "I  see  no 
authority  which  says  the  Ordinary  cannot  empower  a  creditor  to 
sue  on  an  administration  bond;  on  the  contrary,  he  ought  to  do 
so;  for  although  a  creditor  has  no  concern  in  the  latter  part  of 
the  condition  distribution,  jet  he  is  most  materially  interested  in 
the  administrator's  delivering  a  just  and  true  inventory,  and  the 
due  administration  of  the  effects."  This  doctrine  is  also  recog- 
nized in  3  Bac.  Abr.  title  Executors  and  Administrators. 

The  province  of  this  court  would  be,  on  this  statute  of  Charles 
II.  to  settle  the  question  between  these  contradictory  authorities, 
if,  indeed,  it  can  be  raised  in  New  Jersey ;  but  this  I  do  not  think 
necessary.  Although  our  form  of  an  administration  bond  is  copied 
from  that  in  Charles  II.  yet  our  statute  is  much  more  compre- 
hensive, and  couched  in  different  terms.  And  it  would  appear 
that  our  legislature,  in  1784,  when  about  to  define  the  authority 
of  the  Ordinary,  his  surrogates,  &c.  and  to  establish  orphans' 


SEPTEMBEE  TERM,  1822.  209 

Dickerson  v.  Robinson. 

courts  throughout  the  state,  had  another  class  of  citizens  in  view 
beside  those  who  claimed  a  distributive  share  of  the  residue  of 
an  intestate's  estate,  viz.  creditors,  and  that  they  were  equally 
entitled  to  justice  and  protection ;  they,  therefore,  make  them 
parties  in  interest  in  the  due  administration  of  intestates'  estates. 
In  the  eighth  section  they  provide,  that  the  Orphans'  Court 
shall  have  power,  where  letters  of  administration  have  been 
granted,  or  on  sufficient  security,  after  hearing  the  objections  of 
creditors,  or  persons  concerned,  to  order  such  administrators  to 
give  such  further  security  to  the  Ordinary,  by  bonds,  in  the 
usual  form,  as  the  said  court  may  approve  of,  on  neglect  to  revoke 
the  letters  of  administration,  and  the  Ordinary  or  surrogates  to 
grant  letters  to  such  persons  having  a  right  as  will  give  bonds  in 
manner  aforesaid. 

The  tenth  section  enacts,  that  an  executor  or  administrator 
may,  on  sufficient  reason,  call  on  his  co-executor  or  administra- 
tor to  account  for  all  assets  that  have  come  to  his  hands,  and 
the  court  may  compel  such  executor  or  administrator  to  give 
security  to  his  co-executor  or  administrator  for  the  payment  of 
the  balance  remaining  in  his  hands,  to  creditors,  legatees,  or  rep- 
resentatives of  the  testator  or  intestate;  and,  on  refusal  to 
authorize  the  executor  or  administrator  to  sue  for  such  assets  in 
the  hands  of  the  refusing  executor  or  administrator. 

The  sixteenth  section  provides,  that  the  surrogate  shall  audit 
and  state  the  accounts  of  executors  and  administrators,  they  hav- 
ing advertised  their  intentions  for  two  months,  and  report  the 
same  to  the  Orphans'  Court.  But  if  any  person  interested  make 
exceptions,  &c.  provided  always,  that  in  all  cases  where  it  shall 
appear  that  the  executor  or  administrator  hath  not  sufficient  as- 
sets to  satisfy  just  debts  and  expenses,  the  court  shall  not  decree 
an  allowance  of  the  account  until  the  next  term,  nor  till  procla- 
mation at  that  and  the  subsequent  court,  for  all  creditors,  and 
others  in  interest  to  appear  and  shew  cause,  &c. 

The  seventeenth  section  makes  the  decree  of  the  Orphans' 
Court,  on  the  final  settlement,  conclusive  to  all  parties,  and  for 
ever  discharges  the  executors  or  administrators  from  all  demands 
of  creditors  or  others,  except  for  assets  coming  to  their  hands 
after  settlement  for  fraud  or  apparent  mistake. 

In  the  twelfth  section  of  the  act  concerning  executors,  admin- 
istrators and  distribution  of  estates,  it  is  enacted,  that  administra- 

VOL.  I.  0 


210  NEW  JERSEY  SUPKEME  COURT. 

Dickerson  v.  Robinson. 

tors  shall  give  bonds ;  and,  in  case  they  become  forfeited,  it  shall 
be  lawful  for  the  Ordinary  to  cause  the  same  to  be  prosecuted 
in  any  court  of  record,  at  the  request  of  any  party  aggrieved  by 
such  forfeiture. 

The  twentieth  section  enacts,  that  no  executor  or  administra- 
tor shall  be  cited  to  render  an  account  otherwise  than  by  inven- 
tory, unless  at  the  instance  or  prosecution  in  behalf  of  a  minor, 
or  one  having  a  demand  out  of  the  estate  as  a  creditor  or  next 
of  kin,  &c. 

It  appears,  from  an  examination  of  the  two  foregoing  acts,  that 
our  legislature  were  careful  to  protect  creditors,  as  well  as  tho 
next  of  kin,  from  the  unlawful  acts  of  administrators,  in  wasting 
the  estate  of  the  intestate.  They  could  not  be  ignorant  that  many 
persons  died  insolvent  as  well  as  intestate;  and  in  that  case  no 
next  of  kin,  merely  as  such,  could  have  an  interest  in  the  estate. 
That  a  person  of  little  or  no  property  might  obtain  letters  of  ad- 
ministration, and  waste  the  whole  estate,  or  abscond,  and  were 
the  creditors  the  only  parties  in  interest  to  be  without  the  shadow 
of  a  remedy,  with  their  hands  tied  up  from  prosecuting  for  their 
rights  by  the  law  giving  six  months  to  such  administrator,  in 
which  to  ascertain  the  amount  of  the  debts,  Ac.  of  the  intestate? 
I  think  not.  The  legislature,  as  wisely  as  justly,  took  a  more 
enlarged  view  of  the  whole  subject,  added  sundry  provisions  not 
found  in  the  English  code,  and  thus  threw  off  the  shackles  that 
an  individual  opinion,  on  a  new  and  imperfect  law  bad  thrown 
arpund  some  after-decisions  of  the  English  courts,  and  provided 
a  Security  to  all  concerned,  creditors  as  well  as  others,  that  tho 
estate  should  be  in  good  faith  duly  administered.  This  security 
was  the  bond  ;  there  was  no  security  to  alter  the  form  of  that  of 
Charles  II.  the  language  was  appropriate  and  amply  sufficient  to 
fulfil  the  intentions  of  the  legislature.  If  creditors  were  not  in 
.legislative  contemplation  to  be  secured  by  this  bond,  why  give 
them  authority  to  call  on  the  court  to  compel  administrators  to 
give  further  security  in  cases  where  they  supposed  it  was  not  suf- 
tficient,  or  why  are  they  BO  repeatedly  mentioned  throughout  tho 
statutes,  and  first  named  as  entitled  to  a  preference  over  those 
vwho  had  claims  only  to  the  residue.  For  these  reasons  I  am 
satisfied  that,  in  New  Jersey,  a  creditor  has  a  right  to  sue  an 
administration  bond,  ho  having  the  proper  authority  from  tho 
Ordinary  so  to  do. 


SEPTEMBER  TEEM,  1822.  211 

Hunt  v.  Boylan. 

Since  writing  the  above,  I  find  myself  supported  by  a  decision 
in  13  John.  437,  where  it  was  determined,  that  a  creditor  might 
sue  on  an  administration  bond;  also  in  9  Mass.  Reports  117;  1 
Wash.  Rep.  31.  I  think,  therefore,  the  breach  assigned  in  the  plain- 
tiff's declaration  for  the  non-payment  of  the  money  due  him  is 
well  assigned,  and  the  alleged  breach  of  the  condition  supported. 

Another  point  was  raised  on  the  argument,  viz.  that  it  appears 
on  the  record  of  the  Orphans'  Court  that  Jones  had  fully  settled 
for  all  the  assets  that  came  to  his  hands,  although  a  large  balance 
remained  in  the  hands  of  his  co-administrator,  and  that,  there- 
fore, judgment  could  not  go  against  Jones.  If  Freas  had  not 
been  a  party  in  this  joint  bond  the  objection  might  have  pre- 
vailed. But  the  obligors  on  a  joint  bond  are  equally  liable  on  the 
forfeiture  of  the  condition.  Indeed  Freas  has  the  less  reason  to 
complain;  he  knew,  or  ought  to  have  known,  the  amount  of  the 
intestate's  estate,  and  in  whose  hands  it  was ;  and,  if  the  debts 
were  not  paid,  he  should  have  taken  the  measures  pointed  out 
by  the  act  to  compel  his  co-administrator  to  account  and  pay 
out  of  the  balance  in  her  hands,  the  just  demands  of  the  credi- 
tors. I  am,  therefore,  of  opinion  that  judgment  be  entered  for 
the  plaintiff  for  the  penalty  of  the  administration  bond. 

FORD  J.  concurred  in  opinion  with  the  Chief  Justice. 

Therefore,  there  was  judgment  for  the  defendant,  with  leave 
given  the  plaintiff  to  amend. 

CITED  IN  Ordinary  v.  Snook,  5  Hal.  65.  Schuyler  v.  McOrea,  1  Harr.  248. 
Hainee  v.  Price  Ex,  Spen.  480.  Halsttd  v.  Fowler,  2  Zab.  43.  Jifat- 
ter  of  Webster's  Ad.  Bond,  3  Gr.  558.  Matter  of  Hannahs,  1  McCar. 
493.  Hazen  v.  Burling,  \  Gr.  136.  Ordinary  v.  Barcalvw,  1  Vr.  17. 
Ordinary  v.  Hart,  5  Hal.  77. 


JOSEPH  HUNT  against  JOSEPH  BOYLAN. 

ON  CERTIORARI. 

A  transcript  of  the  justice's  docket  not  evidence  to  prove  the  delivery  of  exe- 
cution to  constable. 

This  was  an  action  commenced  by  Joseph  Boylan  against 
Joseph  Hunt,  a  constable,  for  not  returning  an  execution  within 
thirty  days,  as  is  required  by  the  29th  section  of  the  "act  for  the 
trial  of  small  causes,"  Pat.  N.  J.  Laws  313.  Upon  the  trial  below, 
in  order  to  prove  the  fact  of  the  delivery  of  the  execution  to 
constable,  the  transcript  of  the  docket  of  the  justice,  before 


212  NEW  JERSEY  SUPREME  COURT. 

Hay  v.  Bruere. 

whom  the  judgment  had  been  obtained11  on  which  the  said  exe- 
cution issued,  was  read  in  evidence.  The  transcript  was  dated 
on  the  7th  of  August,  1820,  and  stated,  "that  on  the  3d  of  May, 
1820,  execution  had  been  granted  and  delivered  to  Joseph  Hunt, 
constable."  There  was  no  mention  made  of  the  execution  ever 
being  returned. 

Upon  this  evidence,  judgment  was  rendered  against  the  con- 
stable, Hunt,  for  the  amount  of  the  debt,  interest,  and  costs  due 
upon  the  former  judgment  upon  which  the  execution  had  thus 
issued. 

Wall  now  moved  to  reverse  this  judgment  upon  two  grounds. 
1.  That  the  judgment  was  rendered  against  the  constable,  not 
only  for  the  debt  and  costs  of  the  original  judgment,  but  also  for 
the  interest  on  it.  The  language  of  the  statute  was,  "  that  the 
constable  should  be  liable  to  pay  to  the  person  in  whose  favour 
the  said  execution  is  issued,  the  debt  or  damages  and  costs." 
Interest  is  not  mentioned,  and,  therefore,  ought  not  to  have  been 
included  in  the  judgment.  2.  That  the  transcript  of  the  justice's 
docket  was  not  sufficient  evidence  to  prove  the  delivery  of  the 
execution  to  the  constable. 

Per  curiam.  The  transcript  was  not  evidence  to  prove  the 
delivery  of  the  execution  to  the  constable,  because  the  justice  is 
not  required  or  authorized  to  enter  upon  his  docket  the  delivery 
of  the  execution  to  the  constable.  Therefore,  you  may  take  a 
reversal  upon  this  point. 

KIRKPATRICK  C.  J.  As  to  the  first,  I  should  be  very  much 
inclined  to  think  that  the  debt  included  the  interest. 

CITED  is  Runyan  v.  Weir,  3  Hal.  353.    Hunt  v.  Oulick,  4  Hal.  205. 


JAMES  N.  HAY  against  RICHARD  BRUERE,  assignee  of  Letitia  Steward, 
administratrix,  and  George  Bobbins,  administrator  of  Aaron  Steward,  dec. 

05   CERTIORABI. 

Administration  cannot  be  proved  by  parol. 

This  was  an  action  of  debt  upon  a  note  of  hand  given  by 
Hay,  the  defendant  below,  to  Aaron  Steward,  and  assigned  to 
the  plaintiff,  Bruere,  by  Letitia  Steward  and  George  Bobbins, 


SEPTEMBER  TERM,  1822.  213 

Vanderveer  v.  M'Mackin. 

the  administratrix  and  administrator  of  Aaron  Steward.    Judg- 
ment was  rendered  against  Hay  for  the  amount  of  the  note. 

Wall  now  moved  to  reverse  the  judgment,  upon  the  ground, 
that  parol  testimony  was  admitted  to  prove  that  Letitia  Stew- 
ard was  the  administratrix,  and  George  Robbins  the  adminis- 
trator, of  Aaron  Steward. 

Ewing  contra.  The  defendant  admitted,  that  the  signature 
to  the  note  was  his  hand-writing,  and  Letitia  Steward  acknowl- 
edged the  assignment  of  the  note  to  Bruere,  and,  therefore,  it 
appeared  the  plaintiff  was  entitled  to  recover. 

Per  curiam.  Administration  cannot  be  proved  in  pais,  not 
even  by  proving  that  a  person  acted  as  administrator,  because 
he  might  act  without  authority.  Therefore, 

Let  the  judgment  be  reversed. 


CORNELIUS  H.  VANDERVEER  againtt  JOHN  M'MACKIN. 

ON   CEKTIOBARI. 

A  count  for  money  paid  to,  and  for  the  use  of,  defendant,  and  at  his  request, 
to  A.  B.  is  good  injustice's  court. 

EWINQ  moved  to  reverse  the  judgment  rendered  by  the  justice 
in  this  case,  because  the  state  of  demand  contained  only  a  gen- 
eral count  for  money  had  and  received.  There  were  several 
counts  in  the  state  of  demand,  but  the  one  to  which  the  objec- 
tion was  taken  was  as  follows:  "And  also  for  that  whereas  the 
defendant  was  indebted  to  the  plaintiff,  on  the  3d  of  April,  1819, 
in  the  further  sum  of  $1.75,  for  money  paid,  laid  out,  and  ex- 
pended to  and  for  his  use,  and  at  his  request,  to  Peter  Forman, 
esq."  He  contended,  that  the  state  of  demand  should  shew  the 
object  for  which  the  money  was  paid,  laid  out,  and  expended. 
It  must  state  why  and  for  what  purpose  it  is  laid  out.  And  he 
cited  the  case  of  Bruere  v.  Douglass,  1  Pen.  464 ;  Ib.  525,  640. 

KIRKPATRICK  C.  3.  You  do  not  produce  any  case  for  money 
paid,  but  only  for  money  had  and  received. 

Ewing.  No  sir,  but  the  principle  of  those  cases  applies  to  this. 

Watt  opposed  the  motion.  There  is  a  distinction  between 
money  had  and  received,  and  money  paid  out  and  expended.  I 
do  not  know  how  a  state  of  demand  could  be  drawn  with  more 


214  NEW  JERSEY  SUPREME  COURT. 

Woodruff  v.  Smith. 

particularity.    It  states,  that  the  money  was  paid  to  a  particular 
person,  and  at  the  request  of  the  defendant. 

KIRKPATRICK  C.  J.  It  is  the  opinion  of  the  court,  that  the 
same  state  of  demand  which  is  good  in  a  higher  court  is  not 
always  good  in  the  court  for  the  trial  of  small  causes.  Thus,  a 
general  count  for  money  had  and  received,  or  for  goods,  wai*es, 
and  merchandise,  would  not  bo  good  in  the  court  for  the  trial 
of  small  causes.  But  I  do  not  see  that  we  have  ever  decided  a 
case  that  comes  up  to  this.  This  is  not  the  general  count  for 
money  paid,  laid  out,  and  expended,  as  stated  in  the  books. 
Here  the  particular  person  to  whom  the  money  was  paid  is 
named.  This  case  is  not  within  the  reason  of  those  relied  on  by 
the  plaintiff's  counsel.  Even  in  a  count  for  money  had  and 
received,  if  it  had  stated  from  whom  the  money  was  had  and 
received,  it  would  be  sufficient. 

Let  the  judgment  be  affirmed. 


JONATHAN  WOODRUFF  againtt  GABRIEL  SMITH. 

05  CEETIOEAEI. 

In  an  action  of  trover  for  a  promissory  note,  the  maker  of  the  note  is  a  good 
witness  for  the  defendant. 

This  was  an  action  of  trover,  brought  by  Smith,  the  plaintiff 
below,  against  Woodruff,  for  a  note  of  hand.  The  defendant 
below  offered  Quinby,  the  drawer  of  the  note,  as  a  witness.  To 
the  admission  of  his  testimony,  the  plaintiff  below  objected,  and 
the  justice  sustained  the  objection. 

The  attorney-general  now  moved  to  reverse  the  judgment 
rendered  in  favour  of  the  plaintiff  below,  upon  the  ground  that 
Quinby's  evidence  ought  to  have  been  admitted.  Ho  had  no 
interest  in  the  event  of  the  suit,  and  let  who  would  recover,  his 
liability  would  remain  the  same. 

Per  curiam.    Let  the  judgment  be  reversed. 

CITED  m  Shtrron  v.  Humphreys,  2  Or.  218. 


CASES   DETERMINED 

IK  THE 

SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE   OF   NEW   JERSEY, 

AT  NOVEMBER  TERM,  1822. 


THE  PRESIDENT  AND  DIRECTORS  OF  CUMBERLAND  BANK 
against  WILLIAM  HALL. 

1.  The  law  does  not  presume  that  an  alteration,  apparent  on  the  face  of  a 
note,  was  made  after  its  execution. 

2.  But  whether  the  alteration  was  after  or  before  the  execution  of  the  note, 
appears  to  be  a  question  for  the  jury  to  decide. 

This  was  an  action  of  assumpsit  brought  by  the  President  and 
Directors  of  Cumberland  Bank,  as  endorsees  of  a  promissory 
note,  against  William  Hall,  the  drawer,  and  was  tried  before 
his  honour  Justice  Rossell,  at  the  Cumberland  circuit,  in  June, 
1820.  The  facts,  as  they  occurred  at  the  trial,  appeared  by  the 
state  of  the  case  agreed  upon  by  the  attorneys,  to  be  these. 
"The  plaintiffs  proved  the  execution  of  the  note  and  tho 
endorsement,  as  mentioned  in  the  declaration,  and  read  the  noto 
in  evidence,  without  objection,  and  then  rested." 

The  note  appeared  to  have  been  drawn  payable  "to  Clement 
Acton  and  Hedge  Thompson,  or  their  order,"  and  was  endorsed 
by  Clement  Acton  and  Hedge  Tompson,  but  the  words  "  and 
Hedge  Thompson,"  on  the  face  of  the  note,  were  erased,  so  that 
the  note  read,  "  I  promise  to  pay  to  Clement  Acton,  or  to  their 
order,"  &c. 

The  defendant  offered  to  prove  the  declarations  of  Hedge 
Thompson,  the  last  endorser,  made  after  the  commencement  of 

(215) 


216  NEW  JERSEY  SUPREME  COURT. 

President  and  Directors  of  Cumberland  Bank  v.  Hall. 

this  suit,  that  the  name  of  Hedge  Thompson,  in  the  note,  had 
been  erased  after  the  endorsement  of  the  note  by  him ;  which 
evidence  was  objected  to  by  the  plaintiffs'  counsel,  but  was  ad- 
mitted by  the  court.  The  court  then  charged  the  jury,  that  the 
plaintiffs  were  bound  to  account  for  the  alteration,  and,  unless  it 
was  shewn  to  have  been  made  before  the  execution  of  the  note, 
that  the  law  presumed  it  to  have  been  done  afterwards.  To  this 
charge,  the  counsel  for  the  plaintiffs  excepted. 

A  verdict  was  rendered,  under  the  charge  of  the  court,  for  the 
defendant,  with  leave  to  the  plaintiffs  to  move  for  a  new  trial; 
and,  if  refused,  to  submit  to  judgment,  as  in  case  of  a  nonsuit. 

At  February  term  last,  Ewing,  for  the  plaintiffs,  moved  to  set  the 
verdict  aside,  and  for  a  new  trial.  He  contended — 1.  That  declara- 
tions of  Thompson  were  inadmissible  as  evidence.  Either  Thomp- 
son was  interested  in  the  event  of  the  suit,  or  he  was  not.  If  interest- 
ed, his  declarations  were  certainly  inadmissible;  if  not  interested, 
then  his  declarations  were  incompetent,  for  they  were  no  more  than 
the  declarations  of  a  third  person,  not  under  oath.  2.  The  charge 
of  the  judge  was  incorrect;  the  presumption  of  law  was,  that  the 
alteration  or  erasure  apparent  on  the  face  of  the  note,  was  made 
before  its  execution,  and  not  that  it  was  made  after.  The  principle 
of  law  was  well  settled,  that  the  jury  were  to  decide  whether  the 
alteration  was  made  before  or  after  the  execution  of  the  instrument. 
Coke  Lit.  225,  b.  13,  Fin.  Abr.  38  pi  Shep.  Touch.  69.  10  Co.  Rep.  92. 
2  Dal.  306.  But  if  the  presumption  was,  that  the  alteration  was 
made  after  the  execution  of  the  instrument,  then  there  could  be 
nothing  for  the  jury  to  decide  upon.  This  shews  that  the  mere 
circumstance  of  the  alteration  appearing  on  the  instrument  does 
not  make  it  void ;  for  if  it  did  the  court  would  so  decide,  and 
there  would  be  nothing  left  to  the  jurj'.  But  the  true  doctrine  is, 
that  unless  the  alteration  is  shown  to  have  been  made  after,  the 
law  presumes  it  to  have  been  made  before.  Wood's  Inst.  3d  edit. 
296.  1  Swift' sSyst.  310.  12Fin.58,j>Z.5.  13/6.41.  An  interlineation 
will  bo  presumed  to  have  been  matte  at  the  time  of  making  the 
deed,  and  not  after.  3  Cru.  Dig.  title  Deed,  chap.  22.  2  John.  Ca. 
198.  The  same  doctrine  is  held,  in  substance,  in  2  South.  737. 
This  was  not  only  the  rule  of  law,  but  reason,  for  fraud  or  guilt 
was  never\o  be  presumed.  3.  The  verdict  was  against  evidence, 
because  the  jury,  having  found  for  the  defendant,  must  have  found 


NOVEMBEK  TEEM,  1822.  217 

President  and  Directors  of  Cumberland  Bank  v.  Hall. 

that  the  alteration  was  made  after  the1  execution  of  the  note, 
when  there  was  no  evidence  before  them  to  that  effect. 

Jeffers,  in  answer.  The  plaintiff  moves  for  a  new  trial  on  three 
distinct  grounds.  1.  It  is  said,  his  honour  the  judge,  who  tried  the 
cause,  admitted  unlawful  testimony.  2.  Because  the  charge  was 
against  law.  3.  The  verdict  is  said  to  be  against  law  and  evidence. 

I.  The  plaintiffs,  at  the  trial,  offered  in  evidence  a  promissory 
note,  having  proved  the  hand-writing  of  the  maker  and  endorsers. 
On  the  production  of  this  note,  it  appeared  upon  the  face  of  it,  that 
the  name  of  one  of  the  original  payees  had  been  erased.     This 
erasure  avoids  the  promissory  note.  T*he  presumption  of  law,  with 
respect  to  deeds,  is,  that  the  erasure  was  made  after  delivery,  unless 
the  contrary  appears  by  a  note  of  the  erasure  made  before  execu- 
tion, or  by  other  evidence.  lDal.67.  3Dyer261-6.  Gil. Em. 92, 93. 
3  Com.  Dig.  title  Fail,  334  F.  1.     1  Shep.  Touch.  68.    4  Cranch  60. 

II.  This  rule  of  law  applies  as  well  to  promissory  notes  and 
bills  of  exchange  as  to  deeds.    2  H.  Black.  Rep.  141.    Masters 
v.  Miller.    4  Term  Rep.  320.    516.367.    lAnst.228.    1  Selwyn  268. 
Decision  of  Supreme  Court,  February  Term,  1820. 

The  reason  of  the  law  applies  with  full  force  in  this  case.  This 
is  not  the  same  instrument,  it  is  not  the  same  contract,  which  the 
defendant  originally  made.  If  the  holder  of  a  note  can  alter  the 
name  of  one  payee,  why  not  both,  and  make  it  payable  to  a 
stranger.  Suppose  they  had  erased  the  name  of  both  payees, 
and  made  the  note  payable  to  the  bank  at  once,  or  to  some  officer 
of  the  bank,  will  it  be  contended,  the  amount  could  be  recovered 
of  the  maker?  There  must  be  a  privity  of  contract,  as  well  as 
a  consideration.  The  defendant  is  made  debtor  to  one  without 
his  consent  or  knowledge,  and  without  a  pretence  of  considera- 
tion. Clement  Acton  never  transferred  this  note  to  Thompson; 
he  could  only  transfer  his  right;  nor  had  Thompson  power  to 
'transfer  it  to  the  bank. 

It  is  no  argument  to  say,  the  defendant  must  have  paid  the 
note  without  the  alteration.  It  is  not  so  much  for  the  defendant 
that  he  is  exonerated,  as  it  is  for  the  principles  of  law  and  sound 
policy.  "The  reason  of  the  rule,  that  a  material  alteration  shall 
vitiate  a  deed,  is  applicable  to  all  written  instruments,  and  par- 
ticularly to  promissory  notes,  which  are  of  universal  use  in  the 
transactions  of  mankind."  But  the  defendant  may  have  given  the 


218  NEW  JERSEY  SUPREME  COURT. 

President  and  Directors  of  Cumberland  Bank  v.  Hall. 

note  to  Acton  and  Thompson  in  payment  of  an  account,  which 
account  would  not  be  discharged  by  payment  of  this  note,  now 
payable  to  Acton  alone.  He  may  have  had  an  offset,  which 
would  be  good  against  Acton  and  Thompson  jointly,  and  not  be 
good  against  cither  of  them  individually. 

III.  It  is  a  question  of  law  for  the  court  to  determine,  whether 
the  instrument  is  void  by  erasure?  and  if  referred  to  the  jury, 
under  the  direction  of  the  court,  the  jury  are  bound  by  law  to 
find  the  alteration  to  have  been  after,  unless  the  plaintiff  can 
shew  it  was  made  before,  delivery. 

But  it  is  said,  the  jury  are  to  determine,  as  a  distinct  fact, 
whether  the  erasure  was  made  before  or  after  the  delivery.  They 
have  here  expressly  found  it  to  be  after.  The  court  charged  the 
jury  upon  the  law,  and  left  the  fact  for  their  consideration.  This, 
therefore,  is  not  a  verdict  against  law,  and  certainly  not  against 
evidence,  since  the  only  evidence  of  the  plaintiff  was  this  altered, 
and  consequently  void,  instrument.  And  I  am  yet  to  be  informed 
wherein  "  the  charge  of  the  court  was  illegal." 

IV.  The  evidence  of  the  declarations  of  Thompson  were  clearly 
admissible.  7  Term  Rep.  601.  They  went  to  shew  what,  indeed,  it 
was  not  necessary  to  prove,  viz.  that  the  alteration  was  made  after 
delivery.  This  evidence  could  not  affect  the  rights  of  the  plaintiffs ; 
their  case  was  gone  without  the  introduction  of  any  evidence  by 
the  defendant.     If  the  testimony,  therefore,  had    been  unduly 
admitted,  the  court  would  not  grant  a  new  trial.    When  the  case 
is  clearly  with  the  defendant,  putting  his  evidence  out  of  the 
question,  there  is  nothing  to  warrant  a  recovery;  hence,  nothing 
to  warrant  a  new  trial.   If  I  am  correct  as  to  the  law,  what  would 
a  new  trial  avail  the  plaintiffs?    It  would  only  bring  up  the  same 
question  again,  and  receive  the  same  determination.  If  the  verdict 
is  right,  it  is  to  no  purpose  to  grant  a  new  trial.     3  Bar.  1256. 

L.  J5T.  Stockton,  on  same  side.  This  case  may  bo  considered 
in  two  points  of  view,  in  respect  to  the  law,  and  in  respect  to  the 
fact.  I  shall  first  shew,  that  if  the  fact  warrants  the  conclusion 
that  the  name  of  Thompson  was  erased  after  the  execution  of 
the  note,  and  without  the  consent  of  the  defendant,  that  it  will 
avoid  the  note ;  and  herein  I  shall  shew — 1.  That  it  is  so  material 
as  to  be  of  the  very  essence  of  the  thing,  and  creates  in  the  defend- 
ant a  right  of  defence  to  the  suit  founded,  not  only  on  the  strict- 


NOYEMBEJR  TEEM,  1822.  219 

President  and  Directors  of  Cumberland  Bank  v.  Hall. 

ness  of  technical  right,  but  on  the  clear  principles  of  justice.  2 
Jac.  L.  D.  224.  3  Cruise  388,  Pigot's  case.  11  Coke's  Rep.  27.  2 
Black.  Com.  308-9.  These  cases  shew  the  rule  as  to  deeds.  As 
to  bills  of  exchange  and  promissory  notes,  the  law  is  the  same. 
4  Term  Hep.  Master  v.  Miller.  This  case  was  affirmed  in  the 
exchequer  chamber.  5  Term  Rep.  367.  Now,  when  a  man  gives 
an  instrument  to  two  jointly,  and  that  instrument  is  altered  after 
its  execution,  so  as  to  shew  on  the  face  of  it  that  it  was  given 
to  one,  the  instrument  produced  is  not  the  same  as  that  declared 
on ;  and  this  alteration  gives  the  defendant,  not  merely  in  tech- 
nicality, but  in  common  sense  and  justice,  a  good  defence.  It 
can  hardly  be  questioned,  but  what  the  release  of  one  of  two 
joint  drawees  of  a  note  would  discharge  the  drawer.  Suppose 
this  note  given  to  Clement  Acton  and  Hedge  Thompson  had 
been  the  same  day,  and  before  endorsement,  released  by  Thomp- 
son to  the  defendant,  will  any  man  say,  that  the  bank  could 
sustain  a  suit  upon  it?  Surely  not,  because  the  note  would  have 
been  destroyed  by  the  release  before  it  came  into  the  hands  of 
the  endorsee,  the  bank.  Again,  suppose  before  endorsement  he 
had  paid  it  to  Thompson,  could  he  not  plead  such  payment  in 
bar?  Surely  he  could.  Again,  even  without  express  release  or 
payment,  the  defendant,  on  the  assignment  of  his  note  to  the 
bank,  considering  it  as  being  a  joint  note,  might  have  thereon 
many  rights,  both  legal  and  equitable,  as  against  Thompson,  of 
which  he  would  necessarily  be  divested,  if  the  joint  note,  subse- 
quent to  its  execution,  could,  without  his  assent,  be  converted, 
in  the  hands  of  the  endorsees,  into  a  separate  note,  vesting  the 
exclusive  interest  in  another.  It  is  therefore  plain,  that  if  the 
fact  be  that  this  erasure  was  made  after  the  execution  of  the 
note,  and  without  the  assent  of  the  defendant,  that  he  has  clear 
justice,  as  well  as  evident  law,  to  support  his  defence.  This 
general,  most  important,  and  fundamental  proposition  being 
established,  let  us  inquire  into  the  facts,  and  see  whether  they 
were  established  at  the  circuit ;  and  that  they  were  shewn  and 
proved  to  the  satisfaction  of  the  jury,  is  clear  from  the  report 
of  the  case,  and  by  the  verdict  of  the  jury.  And  the  point  on 
which  the  debate  is  to  turn  is — 1.  "Whether  this  proof  before 
the  jury,  of  the  declarations  of  Thompson,  was  lawfully  or 
unlawfully  admitted  by  the  judge?  and  2.  Whether  the  charge 
attributed  to  the  judge  was  lawful  ? 


220  NEW  JERSEY  SUPREME  COURT. 

Thompson  v.  Sutton. 

1.  The  declarations  of  Thompson  were   admissible,  because 
they  wore  the  declarations  of  a  party  adverse,  the  declarations 
of  one  under  whom  the  party  claims,  viz.  an  endorser.     Now 
declarations,  either  of  the  party  on  the  record,  or  of  one  under 
whom  he  claims,  are  clearly  admissible.     The  facts  proved  by 
the  declarations  of  Thompson  were  material  facts,  tending  to 
developo  a  secret  and  fraudulent  proceeding  to  the  injury  of  the 
plaintiffs.     It  was  a  fact  necessarily  lying  in  the  knowledge  of 
Thompson.     He  could  not  be  compelled  to  testify  to  it,  because 
to  compel  him  to  any  such  testimony  would  be  most  directly  to 
impugn  that  great  privilege  of  the  citizen,  to  be  excused  from 
answering  any  question  which  goes  to  criminate  himself.     Now, 
here  the  question  proved  by  the  declarations  of  Thompson  was, 
that  he,  after  the  execution,  had  made  the  erasure.     It  was  a 
fact  which,  under  the  statute,  would  amount  to  a  misdemeanor, 
and  he  could  not  be  compelled  to  answer  it.     If  so,  we,  when 

'we  proved  his  declarations,  we  were  within  the  clear  general 
exception,  and,  in  giving  the  evidence  complained  of,  we  pro- 
duced the  highest  in  our  power,  and  of  which  the  nature  of  the 
case  was  susceptible.  Crilb.  EvL  15,  16,  17. 

2.  The  charge  of  the  judge  was  right.     The  plaintiffs  were 
bound  to  account  for  the  alteration  of  the  note.  *  The  law  is 
plain.    2  Jac.  L.  D.  224.    2  Black.  Com.  308-9.    1  Dal.  67. 

Curia  advisare  vult.  And  now  at  this  term  the  court  are  of 
opinion,  that  the  verdict  must  be  set  aside,  and  a  new  trial 
granted. 

CITED  is  Hunt  v.  Gray,  6  Vr.  229.    Putman  v.  Clark,  2  SUw.  415.    Farlee  v. 
Farlee,  1  Zab.  289. 


EGBERT  THOMPSON  against  JOSEPH  SUTTON. 

05   CERTIORARI. 

The  Court  of  Common  Pleas  may,  at  the  third  term  after  filing  the  appeal, 
permit  the  transcript  of  a  justice  to  be  amended  by  affixing  a  seal  thereto,  pro- 
vided no  delay  is  occasioned  thereby. 

This  cause  was  originally  commenced  before  a  justice  of  the 
peace,  and  a  judgment  rendered  in  favour  of  Thompson,  where- 
upon Sutton  appealed  to  the  Court  of  Common  Pleas  of  the 
county  of  Sussex.  At  the  third  term  after  the  coming  in  of  the 
appeal,  a  motion  was  made  on  behalf  of  Thompson,  the  appel- 


NOVEMBER  TERM,  1822.  221 

Thompson  v.  Button. 

lee,  to  dismiss  the  appeal,  because  the  transcript  of  the  justice's 
docket,  sent  up  with  the  appeal,  had  no  seal  affixed  thereto.  The 
justice,  in  his  certificate,  had  said,  that  the  transcript  was  under 
his  hand  and  seal,  but  there  was  no  appearance  of  a  wax  or  wafer 
to  it.  The  court  refused  the  motion  of  the  appellee,  and  per- 
mitted the  justice,  who  was  in  court  at  the  time,  to  affix  his  seal 
to  the  said  transcript ;  and  at  a  subsequent  term  proceeded  to 
try  the  appeal,  and  gave  judgment  against  Thompson,  where- 
upon he  brought  this  certiorari. 

Vroom  now  moved  to  reverse  the  judgment  of  the  Common 
Pleas,  because  they  proceeded  to  take  cognizance  of  the  appeal 
when  there  was  no  record  before  them.  The  transcript  without 
a  seal  was  of  no  validity.  The  Court  of  Common  Pleas  had  no 
right  to  permit  the  justice  to  affix  his  seal  at  the  time  he  did. 

KIRKPATRICK  C.  J.  We  send  down  records  to  the  inferior 
courts  to  be  perfected  every  day,  and  why  cannot  the  Court  of 
Common  Pleas. 

Vroom.  I  believe  no  amendment  or  alteration  can  be  made, 
unless  a  rule  is  taken  for  that  purpose  at  the  term  to  which  the 
appeal  is  returned. 

KIRKPATRICK  C.  J.  The  omission  of  the  seal  is  a  mere  mistake, 
which,  I  think,  may  be  amended.  The  ground  of  the  rule,  that 
the  amendment  should  be  made  the  first  term,  is  merely  to  pre- 
vent delay.  Here  no  delay  was  occasioned.  There  is  no  prin- 
ciple of  law  against  the  Common  Pleas  making  a  rule  to  amend, 
either  the  second  or  third  term.  We  place  it  at  the  first  term,  in 
order  to  prevent  delay.  I  see  no  injustice  in  allowing  the  amend- 
ment, and  think  it  would  be  too  rigid  to  reverse  for  that. 

FORD  J.  I  believe  these  amendments  depend  upon  the  rules 
of  the  Courts  of  Common  Pleas,  and  they  have  often  admitted 
them  to  be  made  instanter,  when  the  justice  was  present  in 
court,  and  no  delay  would  take  place. 

EOSSELL  J.  concurred. 
Judgment  affirmed. 

CITED  IH  Camp  v.  Martin,  7  Hal.  182.    Allen  v.  Joice,  3  Hal.  166.    Hogencamp 
V.  Ackerman,  4  Zab.  142.     Henry  y.  Campbell,  4  Zab.  141. 


222  NEW  JERSEY  SUPREME  COURT. 


Scott  v.  Conover. 


WILLIAM  SCOTT  against  GARRET  CONOVER,  survivor  of  Garret  Cono- 
ver  and  David  Gordon. 

1.  An  article  of  agreement  stating  that  the  plaintiff  "hath  granted,  bar- 
gained and  sold,  and  doth  absolutely  grant,  bargain  and  sell,"  and  covenant- 
ing to  give  a  good  and  sufficient  title  at  a  future  day,  upon  the  defendant's 
making  certain  payments,  does  itself  convey  the  land,  and  the  agreement  to 
give  a  good   title  afterwards,  means  a  more  formal  deed  rather  than  title, 
strictly  speaking. 

2.  An  action  of  debt  will  not  lie  upon  articles  of  agreement  to  pay  a  certain 
sum  in  bank  notes,  for  they  are  not  money. 

3.  The  action  should  be  covenant,  in  which  the  plaintiff  can  recover  his  real 
damages,  According  to  the  value  of  the  bank  notes. 

This  was  an  action  of  debt ;  plea,  the  general  issue,  with 
notice  of  set-off.  It  was  brought  before  the  court  upon  a  case 
stated  in  these  words ; 

On  the  8th  of  December,  1815,  the  plaintiff  and  defendant,  to- 
gether with  David  Gordon,  entered  into  the  agreement  set  forth 
in  the  plaintiff's  declaration,  under  their  respective  hands  and 
seals,  bearing  date  as  aforesaid,  which  agreement  witniesseth,  that 
William  Scott,  for  and  in  consideration  of  the  just  and  full  sum  of 
five  thousand  one  hundred  and  twenty-five  dollars,  current  bank 
notes  of  the  state  of  N.  Jersey  and  N.  York,  of  each  an  equal  pro- 
portion, to  be  paid  in  manner  following:  that  is  to  say,  two  thou- 
sand one  hundred  and  twenty-five  dollars  on  the  first  day  of  April, 
in  the  year  eighteen  hundred  and  sixteen;  the  remaining  three 
thousand  dollars  to  be  paid  in  three  equal  annual  payments;  the 
first  to  commence  on  the  first  day  of  April  in  the  year  eighteen  hu  n- 
dred  and  seventeen,  with  interest  on  the  whole  from  the  first  day 
of  April  next  ensuing;  the  interest  on  the  whole  to  be  paid  annu- 
ally. For  the  above  consideration  the  said  William  Scott  hath 
granted,  bargained  and  sold,  and  by  these  presents  doth  abso- 
lutely grant,  bargain,  and  sell  all  of  them  two  lots  of  land  situate, 
lying  and  being  in  Middletown  Point,  with  all  the  improvements 
thereon,  eighteen  or  nineteen  acres,  together  with  all  the  prop- 
erty contained  in  an  inventory  dated  April  1,  1815,  amounting 
to  one  hundred  and  seventy-five  dollars  and  fifty-nine  cents.  It 
is  further  agreed  between  the  parties,  that  upon  the  said  Garret 
H.  Conover  and  David  Gordon  paying  the  above  payments,  and 
securing  the  payment  of  the  remainder  by  mortgaging  the  prem- 
ises ;  the  said  William  Scott  to  give  a  good  and  sufficient  title 
for  the  aforesaid  lots  of  land,  and  deliver  the  property  mentioned 


NOVEMBER  TERM,  1822.  223 

Scott  v.  Conover. 

in  this  agreement  to  the  said  Garret  II.  Conover  and  David  Gor- 
don, on  the  first  day  of  April  ensuing.  For  the  true  perform- 
ance of  all  and  singular  the  above  agreement,  the  parties  bind 
themselves  to  each  other  in  the  sum  of  one  thousand  dollars. 

At  the  time  of  the  execution  of  the  said  agreement,  Garret  H. 
Conover  paid  t<5  the  plaintiff  ten  dollars,  part  of  the  purchase 
money  therein  mentioned;  and  on  the  first  day  of  April,  1816, 
entered  into  the  possession  of  the  premises  therein  mentioned, 
with  the  said  David  Gordon :  and  the  said  Garret  and  David 
held  and  enjoyed  the  same,  until  the  death  of  the  said  David 
Gordon,  since  the  commencement  of  this  suit,  and  the  said  Gar- 
ret still  continues  in  the  possession  thereof  (except  as  hereafter 
excepted). 

The  plaintiff,  on  the  1st  of  April,  1816,  delivered  to  the  defend- 
ants, Garret  and  David,  possession  of  the  property  contained  in 
an  inventory  dated  April  1,  1816,  amounting  to  §175.59,  pur- 
suant to  the  article  of  agreement,  and  took  a  receipt  therefor. 

The  defendants,  Gordon  and  Conover  did  not  pa*y  the  sum  of 
$2125  to  the  plaintiff  on  the  1st  of  April,  1816,  pursuant  to  the 
said  agreement,  but  did  pay  to  the  plaintiff,  in  part  payment 
thereof,  and  which  was  accepted  by  the  plaintiff  as  part  payment 
thereof,  the  following  sums  at  the  time  herein  mentioned,  viz. 

The  before  mentioned  sum  of  ten  dollars  on  De- 
cember 8,  1815,                        -                         -  £10.10 
April  8,  1816,   -            -            -            .  732.50 

22,1816,                      -            -            -            .  780.00 

May  14,  1816,  -            -                        *  100.00 

July  10, 1816,                      -            -     %       -            -  220.00 

November  8,  1816,       ....  80.00 

September  4,  1817,             ....  25.00 

December  6,  1817,        .....  10.00 

August  15,  1818,    .....  63.00 

September  30,  1818,    -            -            -  48.25 

April  21,  1819, 4.14 


$2073.14 

On  the  1st  April,  1816,  the  defendants  did  not  tender  to  the 
plaintiff  a  mortgage  on  the  premises,  to  secure  the  payment  of 
the  residue  of  the  money  mentioned  in  the  agreement,  nor  did 


224  NEW  JERSEY  SUPREME  COURT. 

Scott  v.  Conover. 

they,  or  either  of  them,  make  any  payments  thereon  other  than 
those  specified,  nor  have  they,  or  either  of  them,  since  offered 
to  execute  any  mortgage  on  the  premises. 

The  plaintiff  did  not,  on  the  1st  April,  1816,  execute  any 
deed  to  the  defendants,  conveying  to  them  the  premises  in  fee, 
nor  did  he  offer  to  execute  or  deliver  a  deed  fo  them,  nor  was 
he  required  so  to  do,  but  on  the  4th  May,  1818,  did  sign,  seal, 
and  acknowledge,  in  due  form  of  law,  a  deed  for  the  premises, 
with  full  covenants  of  seizin  and  warrantee,  which  said  deed 
he  did  afterwards,  on  the  same  day,  tender  to  the  defendants, 
and  request  them  to  pay  the  sum  remaining  due  on  the  first 
payment  in  the  said  articles  of  agreement  mentioned,  and  to 
mortgage  the  premises  to  him  to  secure  the  remainder,  in  per- 
formance of  the  said  agreement,  which  they  refused  to  do. 

Previous  to  the  said  agreement,  to  wit,  on  the  27th  March, 
1807,  Zachariah  Clevenger,  being  owner  of  the  premises,  did, 
together  with  his  wife  Elsey,  mortgage  the  said  premises, 
amongst  others,  to  Lewis  Abrams  and  Lewis  Gordon,  to  secure 
the  payment  of  three  thousand  dollars,  which  mortgage  was 
duly  acknowledged  and  recorded  pursuant  to  law,  which  mort- 
gage, together  with  the  securities  for  the  moneys  due  thereon, 
were  on  the  5th  of  April,  1817,  assigned  to  William  Scott,  the 
plaintiff,  and  the  plaintiff  hath  kept  said  mortgage  on  foot  ever 
since,  to  protect  his  title. 

At  the  time  of  the  execution  of  the  said  articles  of  agreement, 
one  Matthew  Roberts  was  in  possession  of  three  acres  of  lot  No. 
2,  in  said  articles  mentioned,  holding  and  claiming  title  under  a 
deed  executed  to  him  by  the  said  Zachariah  Clevenger,  then 
being  the  owner  of  the'equity  of  redemption  thereof,  subject  to 
said  mortgage  and  execution,  after  said  mortgage,  to  wit,  on  the 
13th  April,  1808,  and  continued  in  possession  thereof  until  the  15th 
February,  1819,  when  the  plaintiff  recovered  possession  thereof 
by  virtue  of  a  writ  of  habere  facias  possessionem,  issued  on  a  judg- 
ment in  ejectment  founded  on  the  said  mortgage,  and  the  said 
plaintiff  has  continued  in  possession  of  the  said  lot  ever  since, 
but  is  willing  and  ready  to  deliver  the  possession  thereof  to  the 
defendants  when  they  comply  with  the  paid  contract. 

It  is  agreed  between  the  parties,  that  if  the  Supreme  Court 
should  bo  of  opinion  that  the  plaintiff  is  entitled  to  recover  in 
this  suit,  the  whole  of  the  balance  of  the  purchase  money,  then 


NOVEMBER  TERM,  1822.  225 

Scott  v.  Conover. 

judgment  is  to  be  entered  for  the  plaintiff.  And  if  the  court 
should  be  of  opinion  that  any  deduction  is  to  be  made  on  account 
of  the  Roberts  lot,  or  for  the  rent  thereof,  then  that  the  sum  of 

,  the  value  thereof,  be  deducted,  or  the  interest  of  the 

said  sum  as  rents,  as  the  case  may  be.  And  it  is  further  agreed, 
that  in  case  the  said  court  should  be  of  opinion  that  the  plain- 
tiff is  not  entitled  to  recover,  as  aforesaid,  then  judgment  to  be 
entered  for  the  defendant,  With  the  costs.  And  it  is  further 
agreed,  that  either  party  may  turn  this  case  into  a  special  verdict, 
and  bring  a  writ  of  error  within  one  term  after  the  entry  of  the 
judgment. 

This  case  was  submitted  to  the  court  upon  a  written  argument, 
by  Wall,  for  plaintiff,  and  Wood,  for  defendant. 

The  opinion  of  the  court  was  delivered  by 

KIRKPATRICK  C.  J.  If  an  action  of  debt  will  lie  upon  a  con- 
tract to  pay  in  bank  notes,  I  should  think  the  plaintiff  entitled  to 
recover.  The  article  of  agreement  itself  conveys  the  land.  It 
certifies,  that  for  the  consideration  therein  expressed,  'the  plain- 
tiff "hath  granted,  bargained,  and  sold,  and  doth  absolutely  grant, 
bargain,  and  sell,"  &c. ;  and  the  agreement  to  give  a  good  and 
sufficient  title,  afterwards,  ought  rather  to  be  construed  of  a  more 
formal  deed  containing  further  assurances,  than  of  title,  strictly 
speaking.  The  land  had  already  passed ;  the  defendant  had 
actually  entered  upon  it  in  pursuance  of  the  article;  had  become 
clothed  with  the  possession  of  it,  and  made  his  payments,  in  part, 
for  it.  According  to  my  view  of  the  case,  therefore,  the  plaintiff 
could  never  recover  it  back  out  of  his  hands;  and  if  he  cannot 
now  recover  the  price,  he  must  lose  it  altogether.  Besides,  even 
if  it  were  otherwise,  and  the  land  did  not  pass  by  the  article,  yet 
the  defendant,  by  his  taking  and  holding  the  possession  of  it 
under  the  contract,  and  pajring  from  time  to  time,  has  waived  the 
time  of  making  the  deed,  and  has  kept  the  contract  open,  and 
so  has  made  the  tender  of  the  deed  set  forth  in  the  case  a  good 
and  lawful  tender;  at  least,  as  to  all  but  the  three  cases,  and,  as 
to  them,  the  court  is,  by  the  agreement,  authorized  to  ascertain 
and  deduct  their  value  from  the  whole  amount.  Upon  the  whole 
of  the  case,  therefore,  and  the  agreement  of  the  parties,  taken 
together,  under  this  view  of  it,  and  upon  the  supposition  above 
made,  I  should  see  no  objection  to  rendering  judgment  for  the 

VOL.  I.  P 


226  NEW  JEUSEY  SUPREME  COURT. 

Scott  v.  Conover. 

plaintiff.  But  still  I  cannot  bring  myself  to  render  such  judg- 
ment, because  I  think  an  action  of  debt  will  not  lie  upon  a  con- 
tract to  pay  in  bank  notes. 

fiank  notes  are  not  money.  They  are  not  always,  and  in  all 
places,  of  the  value  of  money.  They  were  not  so  at  the  time  of 
this  contract ;  the  two  kinds  specified  were  of  different  values, 
and  both,  counting  them  upon  the  face,  much  under  the  value  of 
money,  I  mean  money  of  the  United  States,  which  is  the  only 
lawful  money  we  know  of;  but  it  is  of  no  consequence  whether 
they  were  of  less,  or  of  equal,  or  of  greater  value,  still  they  are 
not  the  thing  itself;  they  are  no  standard  of  value.  Suppose  tho 
contract  had  been  to  pay  in  the  bank  notes  of  Kentucky,  which 
we  are  told  are  now  depreciated  one  hundred  per  cent,  should 
we  now  here  render  judgment  for  the  whole  amount  in  lawful 
money?  And  can  we,  sitting  here,  distinguish  between  the  notes 
of  one  state  and  those  of  another,  and  say,  these  are  at  par,  and 
those  are  not  so  ? 

It  is  true,  that,  in  common  parlance,  bank  notes  are  called 
money ;  they  pass  from  hand  to  hand  like  money,  and  without 
endorsement ;  they  are,  by  common  consent,  a  sort  of  common 
measure  of  value;  they  were  so,  of  necessity,  even  when  the 
banks  had  stopped  payment,  and  when  they  were  five  and 
twenty  per  cent,  below  the  value  of  money ;  and  they  are  so 
oven  at  this  day,  in  some  of  the  western  states,  where  they  are 
one  half  below  it. 

When  Lord  Mansfield  speaks  of  them  as  money,  he  is  speak- 
ing of  their  nature  as  a  currency;  as  distinguished  from  common 
negotiable  notes;  as  passing  without  endorsement;  and  of  the 
rights  and  liabilities  of  those  who  receive  and  pass  them.     In 
these  respects  he  represents  them,  and  represents  them  truly,  as 
of  the  nature  of  money.    He  says,  too,  that  by  a  bequest  of  money 
in  a  will,  bank  notes  will  pass ;   and  the  reason  is,  because  in 
common  discourse,  they  are  called  money,  and  it  is  to  be  pre- 
sumed the  testator  intended   they  should   pass  as  such.     But 
.  however  by  their  common  currency  they  may  resemble  money, 
.  and  however  by  tho  common  consent  they  may  answer  the  pur- 
I  poses  of  money,  yet  they  certainly  are  not  so  in  reality,  nor 
have  they  a  certain  fixed  value  when  compared  with  it. 

What  Lord  Mansfield  says,  therefore,  must  be  taken  with  cer- 
.  lain  qualifications  arising  from  the  subject  matter  of  which  he 


NOVEMBER  TERM,  1822.  227 

Cavalier  v.  Doughty. 

was  speaking,  and  not  in  an  absolute  sense.  Besides,  even  Lord 
Mansfield  did  not  say,  nor  has  any  other  judge  ever  said,  so  far 
as  I  know,  that  an  action  of  debt  would  lie  upon  a  contract  to 
pay  in  bank  notes. 

The  remedy  of  the  plaintiff  therefore,  I  think,  would  be  in  an 
action  of  covenant,  in  which  he  would  recover  his  real  damages, 
according  to  the  then  value  of  the  bank  notes,  and  according  to 
the  equity  of  the  case. 

I  think,  upon  these  principles,  there  must  be  judgment  for  the 
defendant. 


CHARLES  CAVALIER  against  DANIEL  DOUGHTY. 

OH  CEBTTOBABI. 

The  justice  cannot  proceed  to  try  a  cause  in  the  absence  of  the  plaintiff.  If 
he  does,  and  renders  judgment  against  him  it  will  be  set  aside. 

EWING  moved  to  reverse  this  judgment,  because  the  justice 
rendered  judgment  against  the  plaintiff  in  his  absence.  This 
reason  was  verified  by  the  transcript,  the  words  of  which  were 
as  follows:  "The  defendant  appeared,  and  the  plaintiff  not  ap- 
pearing, the  defendant  proceeded  to  trial,,  and,  after  hearing  all 
allegations  of  defendant  and  the  examination  of  the  accounts,  I 
give  judgment,  in  the  absence  of  the  plaintiff,  for  the  defendant 

for  the  sum  of ."     Ewing  said,  that  if  the  plaintiff  did  net 

appear,  the  only  thing  the  justice  could  do  was  to  dismiss  the  suit. 
The  statute  only  authorized  the  justice  to  proceed  and  hear  the 
cause  in  the  absence  of  the  defendant,  and  not  in  the  absence 
of  the  plaintiff.  Rev.  Laws,  Small  cause  act,  1818,  sec.  7,  13. 

FORD.  Is  the  act  repealed  which  prevented  the  justice  from 
granting  a  nonsuit? 

Ewing.  No  sir.  But  this  case  does  not  come  within  the 
words  of  that  act,  which  are,  "when  the  trial  is  once  com- 
menced there  shall  be  no  nonsuit."  Rev.  Laws. 

Per  curiam.     Take  a  reversal. 


2J8  tfEW  JERSEY  SUPREME  COURT. 


Maffett  v.  Den. 


THOMAS  MAFFETT  at  the  suit  of  DEN  ex  dem.  JOHN  TONKINS  and 
WILLIAM  C.  TONKINS. 

15   EJECTMENT. 

1.  Where  there  has  been  a  rule  for  a  struck  jury,  and,  upon  the  striking  be- 
fore the  judge,  the  sheriff's  book  is  objected  to  as  incomplete,  and  the  objection 
overruled,  the,  incompleteness  of  the  book  is  no  ground  of  challenge  to  the 
array  upon  the  trial,  unless  in  cases  of  imposition  or  fraud,  the  decision  of  the 
judge  who  struck  the  jury  is  conclusive. 

2.  Two  sheriffs  cannot,  by  law,  advertise  and  sell,  and  convey  the  property 
of  defendants  jointly. 

Query.  Whether  their  joint  deed  is  absolutely  void. 

The  nature  of  this  case  sufficiently  appears  by  the  opinion 
delivered. 

White,  attorney  for  plaintiff.    Pearson,  attorney  for  defendant. 

KIRKPATRICK  C.  J.  It  appears,  from  the  report  of  this  case, 
that  the  defendant  took  a  rule  for  a  struck  jury ;  that  at  the  time 
of  the  striking  he  objected,  before  the  judge,  to  his  proceeding 
therein,  because  the  book  presented  by  the  sheriff  did  not  coa- 
tain  the  names  of  all  the  persons  qualified  to  serve  as  jurors  in 
that  county,  but  that  the  judge  overruled  the  objection,  and  pro- 
ceeded to  strike  ;  that  when  the  cause  was  called  for  trial  at  the 
circuit,  and  the  panel  of  the  jury  returned,  the  defendant  chal- 
lenged the  array  on  this  account;  and,  in  support  of  his  chal- 
lenge, called  the  sheriff  as  a  witness,  who,  upon  his  oath,  said, 
"that  the  book  presented  contained  the  names  of  those  free- 
holders whqm  he  conceived  to  be  qualified  as  jurors,  but  not  of 
three-fourths  of  those  of  the  county  within  the  lawful  ages ;"  that 
another  witness  was  also  sworn,  who  said,  "that,  in  his  opinion, 
the  book  presented  did  not  contain  more  than  one-third  of  the 
names  of  the  freeholders  of  the  county  qualified  by  law  to  serve 
as  jurors;"  and,  upon  the  inspection  of  the  book,  it  appeared  to 
contain  but  five  hundred  and  seventy  names.  The  challenge  was 
overruled  upon  the  ground,  that  if  the  judge,  at  chambers,  ac- 
cepts the  book  and  strikes  the  jury,  its  incompleteness  is  no 
ground  of  challenge  to  the  array  upon  the  trial.  Upon  a  good 
deal  of  reflection  and  consideration,  the  court  have  thought  that 
the  rule  laid  down  by  the  judge  at  the  circuit,  is  the  safest  and 
best  rule.  Unless,  therefore,  in  cases  of  imposition  and  fraud,  to 
which  the  party  is  privy,  they  are  inclined  to  say,  that  the  deci- 


NOVEMBER  TERM,  1822.  229 

Maffet  v.  Den. 

sion  of  the  judge  who  strikes  the  jury  must  always  be  conclusive 
upon  this  matter. 

There  is  another  ground  for  a  new  trial,  taken  by  the  defend- 
ant. The  lessors  of  the  plaintiff  claimed  the  premises  in  ques- 
tion, as  purchasers  at  sheriff's  sale,  on  certain  executions  against 
the  defendant.  Some  of  these  executions  were  levied  by  Baxter, 
the  former  sheriff,  and  some  by  Wilkins,  the  present  sheriff. 
These  two  sheriffs  advertised  jointly,  sold  jointly,  and  made  a 
joint  deed,  sealed  with  their  respective  seals.  This  deed  was 
offered  in  evidence,  and  objected  to  by  the  defendant,  because 
these  officers  could  not,  by  law,  advertise  and  sell,  and  convey 
jointly. 

It  is  very  certain,  I  think,  that  the  act  subjecting  lands  to  be 
sold  on  execution  for  the  payment  of  debts,  gives  no  such  joint 
authority.  As  the  law  now  stands,  the  sheriff  who  has  the  first 
levy,  has,  of  course,  the  first  right  to  sell,  if  he  chooses  to  pursue 
it;  and  he  is  not  restrained  to  sell,  by  the  acre,  to  the  amount 
of  his  execution  only,  as  formerly,  unless  so  specially  directed 
by  the  defendant ;  but  he  may  sell  an  estate  worth  $10,000,  upon 
an  execution  for  so  many  hundreds,  or  for  any  less  sum.  And 
when  he  does  so,  the  surplus  of  the  consideration  money,  after 
satisfying  the  execution  or  executions  in  his  hands,  is  to  be  paid 
by  him  to  the  defendant,  unless  he  is  restrained  from  so  doing 
by  due  notice  from  the  next  incumbrancer,  followed  by  a  rule 
of  the  court  out  of  which  the  execution  issues,  or  by  an  order 
of  the  Court  of  Chancery,  which  always  exercises  a  superintend- 
ing power  in  matters  of  this  kind.  In  either  of  these  cases,  the 
said  surplus  must  be  brought  into  the  court  and  paid  to  satisfy 
subsequent  executions,  according  to  their  priority,  in  such  way 
as  such  court  shall  direct.  But  if  the  sheriff  who  has  the  first 
levy  shall  neglect  or  refuse  to  sell  at  the  first  day,  then  he  who 
has  the  next  levy  may  sell,  subject  to  such  prior  execution  ;  but 
not  to  raise  the  money  to  pay  it.  The  law  allows  no  such  mix- 
ture of  authorities, ;  each  sheriff  has  his  distinct  rights,  to  be 
distinctly  exercised,  and  he  becomes  distinctly  responsible. 

This  being  the  view  which  I  have  of  the  authority  of  the  sher- 
iffs, in  these  cases,  I  should  incline  to  think  this  proceeding  alto- 
gether irregular,  tending  to  imposition,  difficulty  and  danger,  and 
greatly  embarrassing  the  rights  both  of  plaintiffs  and  defendants; 
yet  I  am  not  willing  to  say  the  deed  is  wholly  void,  or  that  it  will 


230  NEW  JERSEY  SUPREME  COURT. 

Anonymous. 

not  pass  the  land ;  and  especially  so,  as  we  are  given  to  under- 
stand  that  a  practice  of  this  kind  has  prevailed  pretty  exten- 
sively in  the  western  part  of  this  state,  and  that  many  titles 
now  depend  upon  it.  It  is,  however,  a  dangerous  practice,  and 
in  a  multitude  of  cases  that  might  be  imagined,  would  defeat  the 
Bale  altogether.  In  this  case,  however, 
Let  the  rule  to  shew  cause  be  discharged. 


ANONYMOUS. 

r  It  is  necessary  that  it  should  appear  upon  the  transcript  of  the  justice's  docket, 
that  the  affidavit  required  by  the  sixth  section  of  the  supplement  to  small 
cause  act,  parsed  November  23,  1821,  waa  made  and  filed  with  the  justice  at 

the  time  of  filing  the  appeal  bond. 

• 

HALSEY,  at  the  last  term,  moved  for  a  rule  to  shew  cause  why 
*  mandamus  should  not  issue,  directed  to  the  judges  of  the  Com- 
mon Pleas  of  the  county  of  Sussex,  commanding  them  to  pro- 
ceed to  hear  and  determine  a  certain  appeal  which  had  been  re- 
moved into  that  court  from  the  judgment  of  a  justice,  and  there 
dismissed.  The  facts  upon  which  this  application  was  made, 
were,  that  the  Court  of  Common  Pleas  had  dismissed  the  ap- 
peal, because  it  did  not  appear  upon  the  transcript  of  the  justice's 
docket ;  that  the  appellant,  at  the  time  of  filing  the  appeal  bond 
with  the  justice,  also  filed  with  him  the  affidavit  required  by 
the  proviso  to  the  sixth  section  of  the  supplement  to  the  small 
cause  act,  passed  November  23,  1821.  The  words  of  this  pro- 
viso are,  "  that  no  appeal  shall  be  granted  to  remove  a  judgment 
rendered  upon  the  verdict  of  a  jury,  or  on  a  report  of  referees, 
unless  the  party  demanding  the  appeal  shall,  at  the  time  of  filing 
the  appeal  bond  with  the  justice,  also  file  with  him  an  affidavit, 
made  by  the  said  party,  stating  that  the  said  appeal  is  not  intended 
for  the  purpose  of  delay,  and  that  he  verily  believes  that  he  hath 
a  just  and  legal  defence  to  make  upon  the  merits  of  the  case, 
which  said  affidavit  the  said  justice  shall  cause  to  be  sent  up  to 
the  court  to  which  the  appeal  is  taken,  with  the  other  papers  in 
the  cause."  The  affidavit  was  sent  up  with  the  papers,  but  was 
not  marked  filed,  nor  did  it  appear,  by  the  transcript,  to  have 
been  filed,  though  it  appeared  to  have  been  made  on  the  same 
day  that  the  bond  was  filed,  and  before  the  same  justice.  Halsey 


NOVEMBER  TEEM,  1822.  231 

Anonymous. 

eaid  it  was  not  absolutely  necessary  that  the  justice  should  enter 
upon  that  transcript,  that  an  affidavit  had  been  made,  and  that 
the  Court  of  Common  Pleas  had  no  right  to  dismiss  the  appeal 
because  such  entry  had  not  been  made.  To  shew  that  a  man- 
damus was  the  proper  writ  to  compel  an  inferior  court  to  do  that 
justice  which  they  are  in  duty  and  virtue  of  their  office  obliged 
to  do,  he  cited  4  Bac.  Abr.  498.  2  Pen.  Rep.  738. 

KIRKPATRICK  C.  J.    Take  your  rule. 

No  cause  having  been  shewn  against  the  rule,  Halsey,  at  this 
term,  applied  to  the  court  for  a  peremptory  mandamus. 

Vroom  now  shewed  cause  against  this  motion.  He  admitted 
the  facts  to  be  as  stated  by  the  adverse  counsel ;  but  said,  that 
the  Court  of  Common  Pleas  did  right  in  dismissing  the  appeal, 
for  it  was  necessary  that  the  party  should  file  an  affidavit  with 
the  justice,  at  the  time  of  filing  the  bond,  otherwise  the  latter  was 
of  no  validity.  It  was  the  affidavit  which  completed  the  matter. 
"Under  the  old  law  it  was  always  held,  that  it  must  appear  upon 
the  transcript,  that  an  appeal  was  demanded;  that  was  done  by 
tendering  the  bond ;  this  was  the  substantial  matter  which  must 
appear  upon  the  transcript,  and  now  it  is  as  necessary  that  the 
affidavit  should  appear  to  have  been  filed,  as  that  the  bond  was 
tendered.  It  is  very  easy  for  the  party  to  get  an  affidavit  on  the 
file,  even  though  it  was  not  properly  taken.  The  construction  of 
the  Common  Pleas  was  a  sound  one,  that  whatever  was  necessary 
to  give  the  court  jurisdiction  must  appear  upon  the  transcript. 

KIRKPATRICK  C.  J.  Does  the  act  which  requires  the  affidavit 
require  it  to  be  marked  filed  ? 

Vroom.  No,  sir. 

KIRKPATRICK  'C.  J.  The  objection  is,  then,  that  it  is  neither 
marked  filed,  nor  appears  on  the  transcript,  to  have  been  filed. 

Halsey.  The  question  is,  what  is  evidence  of  the  filing?  Put- 
ting it  in  the  office,  is  the  act  of  filing;  but  it  is  not  the  practice 
of  the  justice  to  mark  the  papers  filed.  This  court  would  not 
introduce  a  practice  which  would  create  still  more  difficulty  in 
making  appeals  than  at  present  exists.  The  party  has  a  right  to 
appeal  any  time  before  the  terra,  and  if  he  does  any  act  to  make 
the  appeal,  and  should  omit  the  doing  some  act  required  to  com- 


232  NEW  JERSEY  SUPREME  COURT. 

Black  v.  Ely. 

plcte  the  appeal,  he  might  do  it  afterwards.  There  was  suffi- 
cient evidence  to  convince  the  Court  of  Common  Pleas  that  an 
affidavit  had  been  made  and  filed,  and,  therefore,  a  peremptory 
mandamus  ought  to  issue. 

Curia  advisare  vult.  At  a  subsequent  day  in  the  term,  the 
court  said  they  were  of  opinion,  that  it  ought  to  have  appeared 
on  the  transcript  of  the  justice,  that  the  affidavit  was  filed  with 
him  at  the  time  of  filing  the  appeal  bond.  Therefore  take 
nothing  by  your«motion  Mr.  Halsey. 

CITED  is  Englc  v.  Blair,  6  Hal  340.     Tichenor  v.  Hewion,  2  Gr.  26. 


THOMAS  BLACK  and  JOHN  BLACK  againtt  JOHN  J.  ELY. 

ON    CERTIORAEI. 

Where  the  plaintiffs,  having  a  mortgage  on  lands  of  defendant  for  the  sum  of 
$4000,  obtain  judgment  on  their  bond,  and  execution  is  placed  in  the  hands 
of  the  sheriff,  if  the  sheriff,  by  virtue  of  this  execution,  levies  on  the  mortgaged 
premises,  but  is  prevented  from  advertising  them  by  a  letter  from  the  plaintiffs, 
and  these  premises  are  afterwards  sold  by  virtue  of  prior  executions,  and  are 
purchased  by  the  plaintiffs  for  six  cents  an  acre  more  than  the  amount  of  their 
mortgage,  the  sheriff  is  not  entitled  to  centage  on  the  whole  amount  of  the  $4000, 
bat  only  upon  the  amount  which  the  property  brought  over  and  above  the 
amount  of  the  mortgage. 

This  action  was  originally  commenced  before  a  justice  of  the 
peace,  and  was  brought  by  John  J.  Ely,  late  sheriff  of  the  county 
of  Monmouth,  against  Thomas  Black  and  John  Black,  "to 
recover  $93.84,  for  his  centage,  or  sheriff's  fees,  on  $4691,  being 
the  amount  of,  principal  and  interest,  due  upon  a  certain  execu- 
tion issued  at  the  suit  of  said  Thomas  Black  and  John  Black 
against  Thomas  Cook,  and  put  into  the  bands  of  said  Ely  to  be 
executed."  A  judgment  was  rendered,  by  the  justice,  in  favour 
of  Ely,  the  sheriff,  for  $93.84,  and  the  Blacks  then  appealed  to 
the  Court  of  Common  Pleas. 

On  the  trial  of  the  cause  before  the  Common  Pleas,  "the 
appellee,  in  support  of  his  action,  read  in  evidence  a  judgment 
and  execution  returnable  to  October  term,  1817,  in  favour  of  J. 
K.  Van  Mater  against  Thomas  Cook,  for  debt,  $470,  and  costs  of 
suit.  Also,  a  judgment  of  the  appellants  against  the  said  Thomas 
Cook,  and  an  execution  issued  thereon,  returnable  to  the  term 
of  July,  1819,  directing  the  sheriff  to  levy  $4000,  with  inter- 
est from  April  1,  1817,  and  costs,  $5.78  Also,  a  mortgage  .from 
Thomas  Cook  to  appellants,  to  secure  the  payment  of  the 


NOVEMBEE  TEEM,  1822.  233 

Black  v.  Ely. 

said  sum,  dated  April  1,  1817.  It  further  appeared,  that  one 
William  Hampton  had  a  mortgage  upon  the  said  premises,  prior 
to  that  of  the  appellants,  given  by  the  said  Thomas  Cook.  There 
was  also  an  execution  against  Thomas  Cook,  in  favour  of  one 
Herbert,  prior  to  that  of  the  appellants.  The  appellee  also  read 
a  letter  from  appellant,  John  Black,  to  him,  dated  August  17, 
1819,  directing  him  to  stay  all  proceedings  on  their  execution, 
till  further  orders. 

"It  further  appeared  in  evidence,  that  the  execution  of  Van 
Mater  was  in  the  hands  of  Charles  Parker,  esq.  late  sheriff,  and 
to  satisfy  which  the  defendant  elected  to  have  his  real  estate  sold ; 
that  the  personal  estate  of  the  said  Thomas  Cook  was  sold  under 
Herbert's  and  one  Gordon's  executions,  and  the  proceeds  were 
applied  to  payoff  said  Herbert's  and  Gordon's  executions,  Gordon 
having,  also,  an  alias,  and  taking  some  property  that  Herbert's  did 
not  bind ;  that  the  execution  of  the  appellants  was  delivered  to 
appellee,  as  sheriff,  and  they  had  an  idea,  that  under  their  execu- 
tion they  could  come  in  for  the  personal  estate,  and  wished  to  raise 
something  for  the  costs  from  that  source,  but  were  told  by  the 
under-sheriff  of  appellee,  that  they  could  get  no  more  from  their 
execution  than  the  land  covered  by  their  mortgage,  as  the  personal 
property  must  be  applied  to  Herbert's  and  Gordon's  executions. 
Chai'les  Parker  advertised  the  mortgaged  premises  for  sale,  under 
Van  Mater's  execution,  in  October,  1819,  and  appellee  advertised 
the  same  for  sale  under  the  executions  of  Herbert  and  Gordon, 
at  the  same  time,  and  attended  at  the  time  and  place  of  sale ; 
that  he  was  prevented  from  advertising  and  selling  on  the 
appellants'  execution  in  consequence  of  the  letter  of  John  Black, 
herein  before  stated ;  that  the  sums  due  upon  Hampton's  mort- 
gage and  the  mortgage  of  the  appellants,  at  the  time  of  the  sale, 
amounted  to  about  $7000;  that  the  equity  of  redemption  in  the 
mortgaged  premises  was  sold  by  sheriff  Parker,  by  virtue  of  Van 
Mater's  execution,  for  six  cents  per  acre,  subject  to  the  mort- 
gages of  Hampton  and  the  appellants,  and  bought  by  John  Black, 
for  himself  and  the  other  appellant;  that  the  proceeds  of  such 
sale  were  applied  to  pay  off  Van  Mater's  execution,  and  that  a 
balance  still  remained  due  thereon;  that  the  said  mortgaged 
premises  were  worth  the  amount  of  the  mortgages  and  the  six 
cents  per  acre ;  and  that  the  appellants  have  received  and  accepted 
a  deed  from  Charles  Parker,  in  pursuance  of  said  sale. 


234  NEW  JERSEY  SUPREME  COURT. 

Black  v.  Ely. 

"  There  was  another  farm  belonging  to  Cook,  advertised  by 
Parker  and  appellee,  sheriffs,  and  was  bid  to  more  than  Van 
Mater's  execution,  and  was  adjourned  by  the  sheriff  on  Herbert's 
bid,  at  request  of  appellants,  for  the  purpose  of  selling  the  equity 
of  redemption  of  Cook,  in  the  mortgaged  premises,  by  virtue  of 
the  previous  executions,  which  was  advertised  for  sale  at  the 
same  time  and  place.  It  was  afterwards  sold  for  more  than  the 
adjourned  bid,  and  for  more  than  the  balance  on  Van  Mater's 
execution,  and  the  balance  paid  to  Ely." 

The  court  affirmed  the  judgment  of  the  justice,  whereupon  the 
Blacks  brought  this  certiorari. 

And  now  Wood  and  Wall,  for  the  plaintiffs  in  certiorari,  con- 
tended, that  the  plaintiff  was  not  entitled  to  centage  upon  the 
execution  of  84691  in  favour  of  the  Blacks.  The  words  of  the 
statute  were,  that  sheriff  should  have  centago  "on  every  dollar, 
to  be  computed  on  the  amount  of  the  debt  or  damages  paid,  or 
secured  to  be  paid,  to  the  plaintiff  by  sale  or  otherwise."  Pat. 
N.  J.  Laws  424.  Here  the  sheriff  had  not  paid  or  secured  any 
money  to  the  plaintiffs,  for  they  obtained,  and  were  entitled  to, 
the  land  by  virtue  of  the  pre-existing  mortgage,  and  not  by 
virtue  of  the  sale  on  the  execution. 

2.  If  he  was  entitled  to  centage  at  all  upon  the  execution,  he 
could  have  it  only  on  the  value  of  the  property  levied  on,  if  the 
property  was  not  sold,  and  the  amount  of  the  sale  if  the  property 
was  sold,  and  was  not  entitled  to  centage  on  the  whole  amount  of 
the  execution,  if  it  exceeded  the  value  of  the  property  levied  on. 

3.  That  in  this  case,  the  property  levied  on  was  only  the  equity 
of  redemption  of  Cook,  for  Cook  had  no  other  right  in  the  land, 
the  mortgagee  having  the  legal  estate ;  and  that,  therefore,  the 
sheriff's  fees  must  be  calculated  only  upon  the  value  of  the  equity 
of  redemption,  viz.  what  it  brought  at  the  sale,  and  not  upon  the 
value  of  the  whole  mortgaged  premises  or  absolute  fee. 

4.  That  the  letter  from  Black  to  the  sheriff,  telling  him  not  to 
sell,  could  not  vary  the  case,  for  if  the  sheriff  had  gone  on  and  sold, 
he  could  only  have  sold  the  interest  of  Cook  in  the  premises,  viz. 
the  equity  of  redemption,  and,  therefore,  before  the  sheriff  could 
derive  any  benefit  from  the  letter,  he  ought  to  have  shown,  that  if 
he  bad  been  permitted  to  have  gone  on  and  sold  under  Black's  ex- 
ecution, he  could  have  raised  the  whole  amount  of  the  judgment. 


NOVEMBER  TERM,  1822.  235 

Black  v.  Ely. 

5.  That  the  purchase  of  the  equity  of  redemption  was  not  an 
extinguishment  of  the  debt. 

Southard  and  E.  Stockton  contended,  that  by  the  purchase  of 
the  equity  of  redemption  by  the  Blacks  they  had  received  satis- 
faction for  their  debt ;  that  it  was  the  same,  substantially,  as  if 
the  money  had  been  paid  to  them,  and,  therefore,  as  the  money 
due  on  the  execution  had  been  substantially  "paid  or  secured  to 
them  "  the  sheriff  was  entitled  to  his  fees  on  the  whole  amount 
of  the  judgment. 

2.  When  the  sheriff  levies  on  property,  he  has  a  right  to  cent- 
age  on  all  moneys  received  on  the  execution,  no  matter  whether 
the  money  is  made  by  his  own  act,  or  the  plaintiff  himself  inter- 
feres and  makes  the  money;  for  the  plaintiff,  by  coming  in  and 
receiving  the  money,  could  not  defeat  the  sheriff  of  his  fees. 

3.  That  the  sheriff  was  entitled  to  fees,  not  merely  upon  the 
value  of  the  equity  of  redemption,  but  of  the  whole  mortgaged 
premises ;  for  that  the  mortgagor,  as  to  every  other  purpose  but 
securing  the  payment  of  the  money  to  the  mortgagee,  had  the 
legal  estate.     It  was  so  decided  in  the  Court  of  Errors  in  the 
case  of  Montgomery  v.  Bruere.     Therefore,  when  a  sheriff  levies 
upon  mortgaged  premises,  he  levies  upon  the  fee;  and  the  per- 
son purchasing  buys  the  fee,  consequently  the  fees  must  be  cal- 
culated upon  the  value  of  the  mortgaged  premises,  and  not  on 
the  value  of  the  equity  of  redemption  only. 

Curia  advisare  vult.  At  a  subsequent  day,  the  court,  without 
delivering  any  opinion,  reversed  the  judgment. 


236  NEW  JERSEY  SUPREME  COURT. 


Gibbons  v.  Livingston. 


THOMAS  GIBBONS  against  JOHN  B.  LIVINGSTON. 

1.  Under  the  act  of  (he  25th  of  February,  1821,  entitled  "A  further  supple- 
ment to  the  act  entitled,  an  act  to  preserve  and  support  the  jurisdiction  of  the 
state,"  a  citizen  of  this  state,  who  nas  been  restrained  by  an  injunction  out  of 
the  Court  of  Chancery  of  New  York  from  navigating  with  his  steam-boat  the 
waters  between  the  ancient  shores  of  the  states  of  New  Jersey  and  New  York, 
may  recover  damages,  with  triple  costs,  •against  the  person  so  restraining  him. 

2.  Although  the  enjoining  and  restraining  was,  by  virtue  of  an  injunction, 
sued  out  and  served  before  the  passing  of  the  act,  and  although  the  defendant 
did  no  act  or  thing,  after  the  pascing  of  the  act,  to  enforce  the  injunction,  yet 
bis  suffering  it  to  remain  in  force  after  the  passing  of  the  act.  and  not  dissolving  it, 
was  such  a  restraining  and  enjoining  as  to  bring  him  within  the  words  of  the  act. 

3.  The  injunction  issued  by  virtue  or  under  colour  of  the  laws  of  New  York, 
because  it  is  those  laws  which  create  the  right  upon  which  the.  power  of  issuing 
the  injunction  was  exercised. 

4.  Query.  Can  a  citizen  of  the  state  of  New  York,  acting  within  that  state, 
and  under  its  judicial  authority,  be  called  in  question  for  such  act  in  another 
state  ?    As  a  general  rule  he  cannot.    But  it  appears  in  this  case  he  may. 

This  was  an  action  of  trespass  on  the  case,  brought  by  Gib- 
bons against  Livingston,  under  the  statute  passed  25th  of  Febru- 
ary, 1820,  (Rev.  Laws  689)  entitled  "A  further  supplement  to  the 
act  entitled  an  act  to  preserve  and  support  the  jurisdiction  of 
this  state,"  to  recover  damages  for  restraining  and  enjoining  him, 
under  an  order  of  the  Court  of  Chancery  of  New  York,  from 
navigating,  with  his  steam-boat,  the  waters  on  the  bay  of  New 
York  or  in  the  Hudson  river,  between  Staten  Island  and  Powles 
Hook.  [The  declaration,  in  this  case,  was  similar  to  that  in  the 
next  case  of  Gibbons  v.  Ogden,  except  as  to  the  dates,  names,  and 
•  lifferent  orders  of  the  Court  of  Chancery  of  the  state  of  New 
fork  on  which  the  suits  were  founded.  Quod  videJ] 

This  cause  came  on  to  be  tried  before  his  honour  Justice  Ros- 
sell,  at  the  Middlesex  circuit,  in  December,  1821,  when  the  plain- 
tiff, in  support  of  the  issue  on  his  part,  gave  in  evidence  the 
following  laws  of  the  state  of  New  York,  exemplified  under  the 
seal  of  that  state,  viz. — 1.  "An  act  for  granting  and  securing  to 
John  Fitch  the  sole  right  and  advantage  of  making  and  employ- 
ing, for  a  limited  time,  the  steam-boat  by  him  lately  invented," 
passed  the  16th  March,  1787.  2.  An  act  entitled  "An  act  repeal- 
ing an  act  for  granting  and  securing  to  John  Fitch  the  sole 
right  and  advantage  of  making  and  employing  the  steam-boat 
by  him  lately  invented,"  passed  on  the  27th  March,  1798.  3.  An 
act  entitled  "An  act  relative  to  a  steam-boat,"  passed  the  5th 
April,  1803.  4.  An  act  entitled  "An  act  to  revive  an  act  relative 


NOVEMBER  TERM,  1822.  237 

Gibbons  v.  Livingston. 

to  a  steam-boat,"  passed  the  6th  April,  1807.  5.  An  act  entitled 
"An  act  for  the  further  encouragement  of  steam-boats  on  the 
waters  of  this  state,  and  for  other  purposes,"  passed  the  llth 
April,  1808.  6.  An  act  entitled  "An  act  for  the  more  effectual 
enforcement  of  the  provisions  contained  in  an  act  entitled  an  act 
for  the  further  encouragement  of  steam-boats  on  the  waters  of 
this  state,  and  for  other  purposes,"  passed  the  9th  April,  1811. 

The  plaintiff  then  gave  in  evidence  a  bill  of  complaint,  which 
was  exhibited  by  John  R.  Livingston  against  Thomas  Gibbons 
and  Aaron  Ogden  in  the  Court  of  Chancery  of  N.  York,  which  bill 
sets  forth  at  large,  all  the  several  acts  of  the  state  of  New  York, 
before  mentioned.  The  exclusive  privilege  granted  under  thosr* 
laws,  to  Robert  R.  Livingston  and  Robert  Fulton,  of  "making, 
using,  employing  and  navigating  all  and  every  species  or  kind  o/ 
boats  or  water  craft  which  might  be  urged  or  impelled  through 
the  water,  by  the  force  of  fire  or  steam,  in  all  creeks,  rivers,  bay  •.» 
and  waters  whatsoever,  within  the  territory  or  jurisdiction  of  th  > 
state  of  New  York."  The  assignment  by  Robert  R.  Livingsto*  < 
and  Robert  Fulton,  to  John  R.  Livingston,  of  the  exclusive 
right  to  navigate  from  any  place  "  within  the  city  of  New  York 
lying  to  the  south  of  the  state  prison  and  the  Jersey  shore,  an* ' 
Staten  Island,  which  lies  to  the  south  of  Powles  Hook  Ferry , 
and  to  the  south  of  Sandy  Hook,  to  wit,  to  Staten  Island,  Eliza 
beth  Town  Point,  Perth  and  South  Amboy,  and  the  river  Raritop 
up  to  Brunswick."  And  then  states  "that  Thomas  Gibbons,  ij 
contravention  of  the  exclusive  right  and  privilege  of  the  said  Johi 
R.  Livingston,  to  navigate  the  waters  of  the  state  of  New  York 
had  set  in  motion  on  the  waters  of  that  state,  and  within  the 
jurisdiction  thereof,  a  certain  steam-boat  called  Bellona,  which 
boat  was  employed  and  intended  to  be  employed  in  the  trans- 
portation of  passengers  between  Elizabeth  Town  aforesaid,  and 
New  Brunswick,  and  actually  navigated  the  waters  of  the  state 
of  New  York,  between  Elizabeth  Town  Point  aforesaid,  and 
New  Brunswick  aforesaid,  and  had  lately  and  within  a  few  days, 
navigated  the  waters  of  the  state  of  New  York,  between  Eliza- 
beth Town  and  Powles  Hook,  and  between  Powles  Hook  and 
the  city  of  New  York,"  and  concluded  with  "praying  an  in- 
junction against  the  said  Thomas  Gibbons  and  his  agents,  cap- 
tains, &c.  to  restrain  them  from  using,  employing  and  navigating 
the  said  steam-boat  Bellona,  or  any  other  steam-boats,  on  the 


238  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

waters  of  the  state  of  New  York,  between  that  part  of  the  city 
of  New  York,  south  of  the  state  prison,  and  any  part  of  Staton 
Island,  or  the  shore  of  New  Jersey,  south  of  Powles  Hook  Ferry." 
[The  bill  also  sets  forth  charges  against  A.  Ogden,  for  violating 
the  exclusive  right  of  complainant,  but  these  it  is  thought  unneces- 
sary to  detail.] 

Then  the  plaintiff  gave  in  evidence  the  answer  of  Thomas 
Gibbons  to  the  bill  of  complaint  of  the  said  John  R.  Livingston, 
by  which  the  said  Thomas  Gibbons  denies  that  the  said  com- 
plainant hath  any  exclusive  right  to  navigate  or  run  a  steam- 
boat or  boats,  or  boats  propelled  by  the  power  of  steam  or  fire, 
from  the  city  of  New  York  to  Brunswick,  as  aforesaid ;  and 
admits,  that  he  is  the  owner  of  a  steam-boat  called  the  Bellona, 
in  the  said  bill  of  complaint  mentioned,  and  that  the  said  steam- 
boat called  the  Bellona,  before  the  time  of  filing  the  said  bill  of 
complaint  of  the  complainant,  being  moved  and  propelled  by 
steam,  was  intended  to  be  employed,  and  navigated,  and  run 
between  the  city  of  New  York  and  the  wharf  of  this  defendant, 
in  the  state  of  New  Jersey,  at  a  place  usually  called  and  known 
by  the  name  of  Halsted's  Point,  which  is  within  the  bounds  of 
the  township  of  Elizabeth  Town  aforesaid,  but  is  separated  from 
Elizabeth  Town  Point  by  a  large  and  navigable  creek;  and  that 
the  said  steam-boat,  in  navigating  and  running  to  and  from 
the  said  city  of  New  York  and  this  defendant's  said  wharf, 
in  the  state  of  New  Jersey,  and  within  the  bounds  of  the  said 
township  of  Elizabeth  Town,  would  cross  and  pass  over  waters 
of  the  state  of  New  York,  and  insists,  might  lawfully  and  right- 
fully be  done,  without  any  license  therefor  from  the  complainant, 
or  from  the  said  Robert  R.  Livingston  and  Robert  Fulton,  or 
any  person  or  persons  deriving  title  under  them  or  either  of 
them.  But  that  the  said  steam-boat,  called  the  Bellona,  never 
was  begun  to  bo  employed,  navigated,  and  run  between  the 
said  city  of  New  York  and  this  defendant's  s,aid  wharf  at  Hal- 
sted's  Point  aforesaid,  in  the  said  state  of  New  Jersey;  but  that 
he,  this  defendant,  some  time  in  the  month  of  March  last  past, 
Ix-L'iin  to  run  his  said  steam-boat,  the  Bellona,  on  the  waters 
lying  between  the  Jersey  shore  and  Staten  Island  from  New 
Brunswick  to  Elizabeth  Town  Point,  navigating  therein  tho 
water  of  the  Rariton  river,  and  those  lying  between  the  New 
Jersey  shore  and  Staten  Island,  commonly  called  the  Sound, 


NOVEMBER  TERM,  1822.  239 

Gibbons  v.  Livingston. 

from  one  port  to  another  port,  both  within  the  limits  and  juris- 
diction of  the  state  of  New  Jersey.  And  that  he  still  continues 
to  navigate  and  run  his  said  steam-boat,  called  the  Bellona,  from 
New  Brunswick  aforesaid,  in  the  state  of  New  Jersey,  on  the 
waters  of  the  Rariton  river,  and  the  said  waters  lying  between 
the  Jersey  shore  and  Staten  Island,  called  the  Sound,  as  afore- 
said, to  Elizabeth  Town  Point  aforesaid,  or  other  points  or  places 
within  the  jurisdiction  of  the  said  state  of  New  Jersey.  And  ad- 
mits, that  since  he  began  to  employ  and  run  his  said  steam-boat, 
called  the  Bellona,  in  the  navigation  aforesaid,  she  has  occasion- 
ally, on  her  passage  from  New  Brunswick  aforesaid,  been  con- 
tinued and  run  from  Elizabeth  Town  Point  aforesaid,  direct  to 
the  dock  or  wharf  at  Powles  Hook  at  the  city  of  Jersey,  in  the 
state  of  New  Jersey,  from  thence  returning  again  direct  to  Eliza- 
beth Town  Point  aforesaid,  the  same  being  a  navigation  from  one 
port  to  another  port,  both  within  the  limits  and  jurisdiction  of 
the  said  state  of  New  Jersey,  and  insists,  not  upon  or  over  any 
water  exclusively  within  the  limits  and  jurisdiction  of  the  state 
of  New  York,  the  waters  lying  between  Elizabeth  Town  Point 
aforesaid,  and  Powles  Hook  at  the  city  of  Jersey,  not  being,  as 
this  defendant  conceives  and  insists,  exclusively  the  waters  of 
the  state  of  New  York,  nor  within  the  exclusive  jurisdiction  of 
the  said  state,  but  being  common  both  to  the  state  of  New  Jer- 
sey and  the  state  of  New  York ;  and  denies,  that  the  said  steam- 
boat, called  the  Bellona,  now  is,  or  ever  was  used,  employed, 
navigated,  or  run  over  any  waters,  or  to,  or  from,  or  between 
any  place  or  places,  or  point  or  points,  or  for  any  purpose,  or  in 
any  manner  whatever,  in  contravention  of  any  exclusive  right 
or  privilege  whatever  of  the  complainant.  And  that  he  admits 
that  in  running  his  said  steam-boat  from  New  Brunswick  to 
Elizabeth  Town  Point,  and  from  Elizabeth  Town  Point  to  New 
Brunswick,  as  aforesaid,  he  takes  passengers  therein,  who  are 
desirous  to  go  with  their  goods  and  baggage  to  and  from  the 
said  places.  And  that  the  said  steam-boat  Bellona,  is,  and  dur- 
ing all  the  time  of  her  said  before  mentioned  navigation  and 
employment,  was,  a  vessel  above  twenty  tons  burthen,  duly  en- 
rolled at  the  port  of  Perth  Amboy,  in  the  state  of  New  Jersey, 
in  the  manner  and  form  in  such  case  required  by  the  laws  of  the 
United  States  of  America  in  that  behalf,  and  duly  licensed  to  be 
employed  in  carrying  on  the  coasting  trade,  according  to  the  laws 


240  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

of  the  United  States,  in  such  case  made  and  provided.  And  that 
the  said  steam-boat,  called  the  Bellona,  being  of  the  burthen  of 
one  hundred  and  sixteen  and  thirty-five  ninety-fifths  tons,  or 
thereabouts,  was  duly  enrolled,  according  to  law,  at  the  said 
port  of  Perth  Amboy,  in  the  state  of  New  Jersey,  on  or  about 
the  twentieth  day  of  October,  in  the  year  one  thousand  eight 
hundred  and  eighteen.  And  that  the  said  steam-boat,  or  vessel, 
called  the  Bellona,  hath,  ever  since  she  was  so  enrolled,  con- 
tinued, and  that  she  now  is,  a  regularly  enrolled  vessel,  within 
the  true  intent  and  meaning  of  the  laws  of  the  United  States  of 
America,  for  enrolling  and  licensing  ships  and  vessels,  to  be  em- 
ployed in  the  coasting  trade  and  fisheries,  and  for  regulating  th/i 
same.  And  that  the  said  steam-boat  or  vessel,  called  the  Bellona 
was,  at  or  about  the  time  of  the  said  enrollment  of  her,  as  afore 
oaid,  duly  licensed  for  carrying  on  the  coasting  trade  for  om< 
year,  in  manner  and  form  by  law  required  ;  and  insists,  that  thi 
said  steam-boat,  called  the  Bellona,  during  all  the  time  that  the 
said  last  mentioned  license  has  continued  and  been  in  force,  law- 
fully might,  and,  while  the  same  shall  continue  in  force,  lawfully 
may,  be  employed  under  the  same  in  carrying  on  the  coasting 
trade;  and  that  the  said  steam-boat,  called  the  Bellona,  whether 
moved  by  steam  or  fire,  or  otherwise,  may  lawfully  be  navigated 
and  employed  under  the  said  license,  while  it  continues  in  force, 
in  any  lawful  trade  or  employment  permitted  by  the  laws  of  the 
United  States  to  vessels  duly  licensed  to  be  employed  in  carry- 
ing on  the  coasting  trade  between  different  ports  of  the  state  of 
New  Jersey,  or  between  ports  or  places  in  the  state  of  New  Jersey 
and  ports  and  places  in  the  state  of  New  York,  and  for  that  pur- 
pose navigate  any  waters  within  the  jurisdiction  of  either  of  the 
said  states,  notwithstanding  the  said  pretended  exclusive  right 
and  privilege  to  navigate  the  waters  of  the  said  state  of  New 
York  with  boats  moved  by  steam  or  fire,  claimed  to  bo  vested  in 
him,  the  complainant,  in  the  manner  in  his  said  bill  of  complaint 
for  that  purpose  set  forth,  and  without  any  permission  or  license 
from  him,  or  from  any  other  person  or  persons,  for  so  doing." 

Then  the  plaintiff  read  in  evidence  an  order  of  the  chancellor 
of  the  state  of  New  York,  dated  the  3d  of  May,  1819,  by  which 
it  was  ordered,  "that  the  motion  for  an  injunction  to  restrain  the 
defendant,  Ogden,  bo  denied ;  and  that  the  motion  as  to  the  de- 
fendant, Gibbons,  bo  also  denied,  so  far  as  respects  the  naviga- 


NOVEMBER  TERM,  1822.  241 

Gibbons  v.  Livingston. 

tion  of  the  Sound,  between  Elizabeth  Town  Point  and  Amboy, 
in  the  state  of  New  Jersey ;  and  that  it  be  granted  only  so  far  as 
to  restrain  and  enjoin  the  defendant,  Gibbons,  from  navigating, 
with  any  boat  or  vessel  propelled  by  steam  or  fire,  the  waters  in 
the  bay  of  New  York,  or  in  the  Hudson  river  between  Staten 
Island  and  Powles  Hook*." 

The  plaintiff  also  read  in  evidence  a  petition  to  the  said  Court 
of  Chancery  of  the  state  of  New  York,  by  the  said  John  R.  Living- 
ston, in  the  said  suit  between  the  said  John  R.  Livingston,  com- 
plainant, and  Thomas  Gibbons  and  Aaron  Ogden  defendants, 
•which  petition  set  forth,  "  that  the  said  John  R.  Livingston  had 
exhibited  a  bill  of  complaint  against  the  said  Thomas  Gibbons  in 
the  Court  of  Chancery  of  New  York,  and  that  an  injunction  had 
issued  thereon  against  the  said  Thomas  Gibbons;"  and  then  set 
forth  the  act  of  the  state  of  New  Jersey  of  the  25th  February, 
1820,  (Rev.  Laws  689);  and  that  the  said  Thomas  Gibbons  had 
prosecuted  attachments  under  that  act  against  the  boat  of  the  said 
John  R.  Livingston  ;  and  that  his  son,  Montgomery  Livingston, 
had,  without  the  consent  of  the  petitioner,  John  R.  Livingston,  ob- 
tained an  order  of  the  Court  of  Chancery  of  New  York  for  dissolv- 
ing the  injunction  which  had  issued  in  the  above  mentioned  cause 
against  the  said  Thomas  Gibbons,  and  prays  that  the  said  order 
may  be  vacated,  and  a  new  injunction  allowed.  The  chancellor 
rejected  this  petition,  and  refused  to  restore  the  injunction. 

And  the  plaintiff  further  proved,  by  C.  Yanderbilt,  that  he  was 
the  owner  of  the  steam-boat  Bellona ;  that  the  said  steam-boat 
was,  and  always  had  been,  a  coasting  vessel,  regularly  enrolled 
and  licensed  under  the  laws  of  the  United  States;  that  the  said 
plaintiff  was  a  citizen  of  this  state ;  that  the  said  injunction 
•was,  in  June,  1819,  served  on  the  witness,  (he  being  then  master 
of  the  said  steam-boat  Bellona)  on  board  the  said  boat,  while 
she  was  lying  at  Staten  Island;  and  again,  in  New  York,  in 
March,  1820;  that  within  a  few  days  after  the  service  of  the  said 
injunctions,  the  witness  informed  the  plaintiff  of  the  same,  and 
gave  him  copies  of  said  injunctions;  that  between  the  1st  and  5th 
of  April,  1820,  the  witness,  at  the  request  of  the  plaintiff,  applied 
to  John  R.  Livingston,  the  defendant,  to  state,  whether  he  meant 
to  continue  to  restrain  the  plaintiff,  Thomas  Gibbons,  under  his 

*See  4  John.  Chan.  Sep.  48. 

VOL.  I.  Q 


242  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

injunction  aforesaid,  from  navigating  with  the  said  steam-boat,  the 
Bellona,  the  waters  on  the  bay  of  New  York,  between  the  ancient 
shores  of  the  states  of  New  Jersey  and  New  York?  and  that  said 
Livingston  replied,  he  should  give  no  answer.  The  plaintiff  gave 
Borne  further  testimony,  shewing  the  length  of  time  he  was  pre- 
vented running  his  boat  by  means  of  the  injunction  aforesaid, 
and  the  damage  he  had  sustained  in  consequence  thereof. 

To  the  whole  of  the  evidence,  thus  given  on  the  part  of  the 
plaintiff,  the  defendant  demurred. 

At  the  May  term  of  this  court,  the  argument  of  this  demurrer 
came  to  be  heard,  when 

R.  Stockton,  in  support  of  the  demurrer,  said,  this  is  an  action 
on  the  statute  of  New  Jersey,  passed  the  25th  February,  1820, 
entitled,  "X  further  supplement  to  the  act  entitled,  an  act  to  pre- 
serve and  support  the  jurisdiction  of  this  state."  Rev.  Laws  689. 
The  third  section  of  that  act  enacts,  "that  if  any  citizen  of  the 
state  of  New  Jersey  shall  hereafter  be  enjoined  or  restrained  by 
any  writ  of  injunction  or  order  of  the  Court  of  Chancery  of  the 
state  of  New  York,  by  virtue,  or  under  colour,  of  any  act  of  the 
legislature  of  that  state,  from  navigating  with  any  boat  or  vessel, 
moved  by  steam  or  fire,  belonging  or  to  belong,  in  part  or  in 
whole  to  him,  the  waters  between  the  ancient  shores  of  the  states 
of  New  Jersey  and  New  York,  the  plaintiff  or  plaintiffs,  in  such 
writ  or  order,  shall  be  liable  to  the  person  or  persons  aggrieved, 
for  all  damages,  expenses,  and  charges  occasioned  thereby,  to  be 
recovered,  with  triple  costs,  in  an  action  of  trespass  or  trespass 
on  the  case,  in  any  court  having  cognizance  thereof,  or  by  a  writ 
of  attachment,  in  case  the  plaintiff  or  plaintiffs  in  any  such  writ 
or  order  of  the  Court  of  Chancery  of  the  state  of  New  York,  shall 
not  bo  resident  in  the  state  of  New  Jersey."  This  act  is  not  to  go 
into  operation  until  the  1st  of  April,  1820.  To  bring  the  defend- 
ant within  this  act,  the  plaintiff  avers,  that  the  defendant,  upon 
a  bill  filed  by  him  in  the  Court  of  Chancery  of  New  York,  did,  in 
May,  1819,  obtain  an  order  for  an  injunction.  The  proof  is,  that 
the  injunction  was  served  within  the  state  of  New  York,  in  June, 
1819,  by  leaving  a  copy  thereof  with  the  master  of  the  plaintiff's 
.boat,  Bellona,  on  board  the  said  boat,  while  she  was  lying  at 
Staten  Island;  and  again  in  March,  1820,  in  New  York,  by 
putting  up  a  copy  of  the  said  injunction  on  a  conspicuous  part 
•  of  the  said  steam-boat;  and  that  between  the  1st  and  5th  of  April, 


NOVEMBER  TERM,  1822.  243 

Gibbons  v.  Livingston. 

1820,  the  agent  of  the  plaintiff,  Gibbons,  called  on  the  defendant 
to  know,  whether  he  meant  to  continue  to  restrain  the  plaintiff, 
under  his  injunction,  from  navigating  with  his  steam-boat,  the 
Bellona,  the  waters  on  the  bay  of  New  York,  between  the  an- 
cient shores  of  the  state  of  New  Jersey  and  New  York?  To 
which  inquiry  the  defendant  made  no  answer.  These  are  the 
only  acts  of  interruption  of  which  the  plaintiff  complains. 

The  general  question  is,  whether,  upon  this  law  and  these 
facts,  this  suit  can  be  sustained?  I  shall  hereafter  contend,  that 
the  statute  upon  which  this  action  is  founded  is  unconstitutional 
and  void ;  but  shall,  at  present,  consider  the  case  as  if  the  statute 
was  free  from  any  such  objection,  and  shall  inquire,  whether  the 
defendant  has  been  brought  within  it? 

1.  The  plaintiff  has  not  shewn  in  evidence,  that  the  defendant, 
by  any  process  of  injunction,  restrained  or  enjoined  the  plaintiff 
from  navigating  the  waters  between  the  ancient  shores  of  New 
Jersey  and  New  York,  after  the  1st  of  April,  1820.  This  is  ab- 
solutely necessary.  The  proviso  suspends  the  whole  operation  of 
the  law,  until  the  1st  of  April,  1820.  It  is  no  law  until  then  ;  it  can- 
not bo  broken  but  by  some  act  done  after  that  time;  it  does  not 
extend  to  the  case  of  an  injunction  sued  out  before  the  Istof  April, 
when  no  proceedings  have  taken  place  to  enforce  it  after  that  day. 
The  third  section  is  prospective  in  its  very  terms.  It  makes  use  of 
the  words,  "  if  any  citizen  shall  hereafter  be  enjoined,"  &c.  It  was 
incumbent  on  the  plaintiff  to  shew,  that  after  the  1st  of  April,  the 
defendant  enjoined  or  restrained  him.  The  act  requires  it;  the 
declaration  avers  it.  This  could  be  shewn  only  by  proving  some 
express  substantive  actof  defendant,  after  the  1st  of  April,  1820,  to 
restrain  or  enjoin  the  plain  tiff;  or  that  he  had  taken  out  or  served 
an  injunction,  or  tried  to  enforce  the  former  by  a  seizure,  or  appli- 
c"ation  for  an  attachment  after  that  time.  What  is  the  testimony? 
That  the  injunction  was  taken  out  in  May,  1819,  served  in  June, 
1819,  and  set  up  on  board  the  Bellona  in  March,  1820.  None 
of  the  acts  will  bring  the  defendant  within  the  words  of  the  law. 
All  he  did,  after  the  first  of  April,  was  to  refuse  to  answer;  he 
stood  mute,  and  for  this,  instead  of  being  pressed  to  death,  ac- 
cording to  the  old  judgment  of  peine  forte  et  dure,  the  plaintiff, 
very  mercifully,  asks  only  all  the  damages  with  triple  costs. 
.This  evidence  is  palpably  insufficient.  He  had  a  right  to  hold 
his  tongue.  People  often  get  into  difficulty  by  talking  too  much, 


244  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

but  I  never  before  knew  of  a  person  bringing  himself  within 
the  purview  of  a  penal  statute  by  holding  his  peace.  Will  his  re- 
maining silent  stand  for  the  act,  the  positive  act  of  restraint? 
Ho  was  not  bound  to  answer  to  any  question  put  to  him  by  plain- 
tiff, much  less  was  he  bound  to  answer  the  question  put  "  whether 
he  meant  to  continue  to  restrain  the  plaintiff  from  navigating 
the  waters  in  the  bay  of  New  York,  between  the  ancient  shores  of 
New  Jersey  and  New  York?"  The  question  was  not,  whether 
he  meant  to  restrain  him  from  navigating  one-half  of  the  Hud- 
son, or  such  part  of  the  bay  as  is  claimed  by  Now  Jersey,  as  her 
territory?  but  the  waters  of  the  bay  of  New  York?  including 
•what  notoriously  belongs  to  the  state  of  New  York,  up  to  their 
wharves,  evidently  setting  up  the  absurd  pretence  of  the  act  of 
1811,  that  New  York  had  no  right  to  grant  an  exclusive  right  to 
the  use  of  her  own  waters.  All  that  was  done  by  way  of  restraint, 
•was  done  before  the  existence  of  the  law.  He  was  not  bound  to 
retrace  his  steps,  to  dissolve  his  injunction,  or  to  give  notice  that 
he  would  not  enforce  it;  the  law  does  not  require  it.  Plaintiff 
had  no  right  to  impose  it  on  him.  To  keep  out  of  the  penalties, 
he  had  only  to  do  no  more.  If  Gibbons  had  come  into  New 
York,  and  defendant  had  seized  his  boat,  or  served  another 
injunction,  there  would  haVe  been  a  case  within  the  act.  But 
he  did  not.  Why  ?  He  was  fearful  of  the  consequences ;  it  was 
his  own  fears  and  apprehensions,  then,  which  occasioned  the  fact, 
of  his  boat  being  laid  up,  and  no  act  of  the  defendant,  after  the 
law  was  in  force.  To  make  an  injunction,  taken  out  and  served 
before  April,  1820,  the  ground  of  this  suit,  is  to  prove  the  law 
unconstitutional.  It  was  lawful  to  sue  out  an  injunction,  awarded 
by  the  court,  and  served  in  New  York,  until  April,  1820.  When 
done,  there  was  no  law  against  it.  To  make  it  the  foundation  of 
penal  proceeding,  is  to  give  it  precisely  an  ex  post  facto  opera- 
tion. 

II.  If  this  injunction  had  been  taken  out  after  the  1st  of  April, 
1820,  is  it  such  an  injunction  as  is  prohibited  by  the  act  ?  Rev. 
Laics  689.  The  injunction  prohibited  is  one  awarded  by  the 
CourL  of  Chancery  of  New  York,  by  virtue,  or  under  colour  of 
an  act  of  the  legislature  of  the  state  of  New  York.  Such  is  the 
precise  description  of  the  process  our  act  meant  to  countervail. 
Inflated  and  deceived,  as  the  legislature  might  have  been  on  this 
subject,  they  never  meant  to  set  themselves  in  array  against  a 


NOVEMBER  TEKM,  1822.  245 

Gibbons  v.  Livingston. 

sister  state  and  her  regular  tribunals;  they  only  meant  to  meet 
the  extraordinary  remedies  given  by  New  York  to  guard  the 
exclusive  title  she  had  granted.  The  express  provision,  the  casus 
fcederis  is,  that  the  citizen  of  New  Jersey  shall  be  enjoined  or 
restrained  by  injunction  sued  out  in  virtue,  or  under  colour,  of  an 
act  of  the  legislature  of  the  state  of  New  York. 

The  legislature,  no  doubt,  were  led  to  believe  that  the  statutes 
of  New  York  gave  this  process  by  express  enactment,  to  prevent 
any  Jersey  steam-boat  from  navigating ;  or,  seeing  the  progress 
of  legislation  in  New  York,  they  apprehended  that,  by  statute, 
its  legislature  might  order  the  chancellor  to  issue  such  injunction. 
Upon  this  state  of  things  existing,  or  which  might  happen,  they 
provide,  that  if  any  interruption  occurs  by  virtue,  or  under  colour, 
of  such  legislative  act,  the  consequence  shall  ensue.  This  act 
is  levelled  against  interruptions  under  pretence  of  positive  legis- 
lative provisions.  The  injunction  denounced  is  a  statutory 
injunction  merely,  not  an  injunction  issuing  as  of  common  right, 
according  to  the  law  and  practice  of  a  court  of  chancery.  Our 
legislature  only  provided  a  countervailing  remedy,  by  statute,  for 
a  supposed  statute  remedy  given  by  New  York,  to  protect  the 
exclusive  right. 

Has  the  plaintiff  given  in  evidence  any  injunction  issued  by 
virtue  of,  or  under  colour  of  a  statute  of  New  York?  Has  the 
chancellor  of  New  York,  in  awaiting  this  injunction,  produced 
on  the  ground,  that  this  remedy  is  given  by  statute  ?  No  such 
thing.  How  does  the  plaintiff  get  over  this  in  his  declaration? 
He  recites  the  statutes  giving  the  exclusive  right  to  Livingston 
and  Fulton ;  statutes  which  constitute  merely  the  title  of  the 
party  to  the  exclusive  right  or  franchise.  But  he  does  not  show, 
nor  can  he,  that  these  acts  direct  the  chancellor  to  award  an 
injunction. 

There  is  a  statute  of  New  York  directing  an  injunction,  and 
this  provision,  not  understood  at  the  time,  probably  produced  the 
wording  of  our  act.  The  only  statutory  injunction  of  New  York 
is  given  by  the  act  of  the  llth  April,  1811,  which  relates  to 
another  subject.  In  April  1808,  the  legislature  of  New  York,  to 
protect  the  exclusive  right,  forfeited  to  Livingston  and  Fulton, 
and  their  associates,  all  boats  infringing  that  right ;  and  by  the  act 
of  1811,  they  give  the  remedy  of  trover  to  recover  the  boat  so 
forfeited,  and  enact,  that  pending  this  action,  the  chancellor  shall, 


246  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

by  injunction,  prevent  the  removal  of  such  forfeited  boat.  All  this 
is  bottomed  on  the  forfeiture,  and  the  action  of  trover  to  recover 
it.  Now,  Livingston's  bill  in  chancery  is  not  on  this  ground  at 
all.  There  is  no  averment  in  the  declaration,  nor  testimony  to 
bring  it  within  the  case  in  which  a  statute  of  New  York  orders 
an  injunction. 

This  injunction,  then,  was  issued  not  in  virtue,  or  under  colour, 
of  a  legislative  act  of  New  York.  How  was  it  issued  ?  What  is  its 
foundation  ?  It  was  awarded  by  the  chancellor  of  Now  York, 
setting  in  his  court  of  equity,  dispensing  the  law  on  principles  of 
common  right,  according  to  the  general  law  of  that  court.  The 
acts  of  New  York,  set  out  in  the  declaration,  and  in  the  defend- 
ant's bill,  are  merely  the  title  which  the  defendant,  and  those 
tinder  whom  he  claims,  have  to  the  exclusive  privilege.  They 
are  nothing  more  than  grants  on  deeds  from  a  public  body  to  an 
individual.  They  merely  give  title ;  they  provide  no  remedy ; 
they  direct  no  injunction.  How  then  can  it  be  said,  that  the  chan- 
cellor awarded  this  injunction  by  virtue,  or  under  colour,  of  an 
act  of  the  legislature?  If  a  complainant  sets  out  bis  title  deeds  and 
prays  an  injunction,  can  it  be  said  that  the  injunction  is  by  virtue, 
or  under  colour,  of  the  deeds?  The  principle  on  which  it  was 
granted  is  one  fully  established,  and  fundamental  in  this  branch  of 
the  law,  viz.  that  if  a  person  is  in  possession  of  an  exclusive  right 
or  privilege,  he  shall  not  be  disturbed  until  his  title  has  been  tried 
and  overruled,  9  John.  587. 

Then,  if  the  law  is  valid,  we  are  not  within  it.  1.  He  did 
nothing  contravening  its  provisions  after  it  took  effect.  2.  No 
such  statutory  injunction,  as  is  contemplated  by  the  act,  has  been 
sued  out  at  any  time. 

But  I  shall  now  contend,  that  this  section  of  the  statute,  upon 
which  this  action  rests,  is  void  in  respect  to  the  interruption  in 
New  York,  because  it  violates  the  constitution  of  the  United 
States  in  two  distinct  grounds ;  and  these  points,  though  they 
cover  only  the  interruption  in  New  York,  yet  will  bar  the  plain- 
tiff of  his  suit.  What  does  the  third  section  ordain  ?  How  does  it 
give  cause  of  action  against  the  defendant?  What  has  he  done 
to  make  him  liable  in  a  penal  action  in  New  Jersey?  He,  being 
a  citizen  of  New  York,  has  filed  a  bill  in  the  Court  of  Chancery ; 
obtained,  by  judicial  proceeding,  an  injunction,  and  served  it  on 
the  plaintiff,  within  the  state  of  New  York.  He  is  called  in  ques- 


NOVEMBER  TERM,  1822.  247 

Gibbons  v.  Livingston. 

tion,  not  only  for  enjoining  the  plaintiff  in  New  Jersey,  but  also 
in  New  York.  I  acknowledge,  that  if  I  am  wrong  in  my  two  first 
points,  that  the  third  section  covers  this  case  upon  the  construc- 
tion the  plaintiff  must  give  it.  But  had  the  legislature  a  constitu- 
tional right  to  pass  the  law?  I  deny  it.  It  is  not  in  the  power  of 
the  legislature  of  one  state  to  pass  laws  against  the  citizens  of 
another.  The  legislature  of  New  Jersey  have  no  constitutional 
right  to  give  an  action  against  a  citizen  of  New  York,  because 
he  has,  in  a  regular  course  of  law,  impleaded  a  citizen  of  New 
Jersey  in  New  York,  and  obtained  the  remedy  a  court  of  justice 
has  decided  that  he  was  entitled  to.  In  short,  a  citizen  of  New 
York  cannot  be  questioned,  and  be  made  liable  to  penalties  in 
New  Jersey  for  a  judicial  proceeding  in  New  York,  in  a  case 
clearly  within  the  jurisdiction  of  the  court.  But  as  the  sentence 
and  award  of  the  court  would  have  been  a  full  defence  and  pro- 
tection against  any  suit  for  damages  in  New  York;  so  it  is  in 
New  Jersey.  4th  article  of  the  Constitution  of  the  United  States. 

The  act  of  congress  declares,  that  the  judicial  proceedings  of 
any  state  shall  have  the  same  credit  and  effect  in  every  other  state, 
as  it  has  in  the  state  where  the  proceeding  was.  This  part  of  the 
constitution  has  received  the  proper  decision  in  the  Supreme 
Court  of  the  United  States.  7  Cranch.  481.  3  Wheat.  234. 

Then  all  we  have  to  do  is  to  ask,  what  would  be  the  effect  of 
this  award  of  the  chancellor,  and  of  this  injunction  in  New  York? 
"Would  it  not  be  a  complete  indemnity?  how  can  it  be  any  thing 
less  in  New  Jersey?  The  act,  then,  construed  as  the  plaintiff's 
counsel  does  and  must,  construe  it,  in  making  penal  a  judicial  act 
of  New  York,  executed  there,  by  a  citizen  of  New  York,  is  void. 

2.  The  act  of  February  1820,  if  it  means  what  the  plaintiff 
asserts  it  does  mean,  and  .as  its  words  seem  to  import,  to  subject 
a  citizen  of  New  York  to  this  action  here,  for  enjoining  or 
restraining  a  citizen  of  New  Jersey  from  navigating  by  steam 
any  of  the  waters  between  the  ancient  shores  of  New  York  and  New 
Jersey,  even  though  those  waters  are  confessedly  within  the  juris- 
diction of  New  York ;  if  this  is  the  intent  of  this  third  section, 
it  is  radically  and  totally  unconstitutional,  as  repugnant  to  the 
rights  of  a  sister  state  and  against  the  spirit  and  expressions  of 
the  constitution  of  the  United  States. 

Here  I  assume  the  constutionality  of  the  monopoly  laws  of 
New  York.  Their  legislature  had  a  right  to  reward  the  persons 


248  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

who  brought  steam-boats  into  practical  use,  by  giving  them  the 
exclusive  right  in  their  own  proper  waters.  This  cannot  be  here 
denied.  The  constitutionality  of  those  laws  has  been  decided  by 
the  proper  tribunal ;  it  remains  law,  until  altered  and  reversed. 
In  New  Jersey  we  claim  and  exercise  the  right.  Stevens1  law. 
Every  state  claims  the  same,  as  part  of  its  sovereignty.  Our  legis- 
lature solemnly  recognized  them  as  constitutional  when  they  re- 
pealed the  act  in  favour  of  Ogden  and  Dod.  Besides,  the  plaintiff, 
in  suing  on  this  statute,  must  concede  the  constitutionality  of  the 
New  York  laws,  for  the  statute  on  which  his  action  rests  is  pre- 
cisely the  same  as  the  enforcing  laws  of  New  York.  If,  then,  New 
York  has  enacted  a  constitutional  law,  how  can  New  Jersey,  by 
an  act  of  their  legislature,  declare  that  a  citizen  of  New  York, 
acting  under  that  act,  shall  be  subjected  to  a  suit  here  forso  doing? 
To  legislate  over  its  own  territory,  is  an  essential  attribute  of  sov- 
ereignty, and,  therefore,  it  is  not  competent,  upon  general  princi- 
ples, for  another  state  to  attempt  to  control  a  legal  act  by  passing 
countervailing  laws.  If  there  is  any  one  principle  most  funda- 
mental in  the  scheme  of  the  American  confederacy,  it  is  the  abso- 
lute sovereignty  of  the  states  to  regulate  their  own  territory  in 
all  cases  not  interdicted  by  the  constitution  of  the  United  States. 

But  it  will  be  said,  that  New  York  has  gone  further,  and 
claims  jurisdiction  in  the  proper  waters  of  New  Jersey;  that, 
by  construction,  her  courts  extend  these  acts  to  all  the  dividing 
waters,  though  the  terms  of  their  laws  confine  them  to  the  waters 
of  New  York.  Admitting  it  to  be  so,  this  forms  no  ground  to 
sustain  our  act.  We  have  no  pretence  of  claim  to  any  right  to 
legiHlate  over  the  proper  waters  or  territory  of  New  York ;  and 
because  New  York  makes  claim  without  title,  it  cannot  enable 
us  to  make  criminal  here  a  legal  act  there.  The  laws  of  New 
York  are  before  us :  on  their  face  they  are  perfectly  correct ; 
confined  to  their  own  territory.  Because  they  claim  part  of  our 
territory,  by  a  title  which  they  think  good,  and  we  bad,  does 
this  give  a  right  in  us,  a  right  to  prohibit  or  punish  an  act  done 
within  their  proper  territory,  as  acknowledged  by  us  ? 

Again,  it  will  be  said,  that  New  Jersey  has,  and  does  assert,  a 
right  to  the  free  navigation,  even  of  the  waters  of  New  York, 
and  denies  to  New  York  the  right  to  impair  it  in  any  manner, 
even  by  such  regulations  as  these;  and  this  may  require  a  review 
of  these  laws  for  the  support  of  the  jurisdiction  of  tbis  state. 


NOVEMBER  TERM,  1822.  249 

Gibbons  v.  Livingston. 

The  controversy  between  this  state  and  the  state  of  New 
York  arose  thus:  The  duke  of  York  grants  to  Berkley  and 
Carteret  "all  that  tract  of  land  adjacent  to  New  England,  to 
the  westward  of  Long  Island  and  Manhattan  Island,  bounded 
on  the  east  part  by  the  main  sea  and  part  by  Hudson  river,  and 
hath  on  the  west  Delaware  bay  or  river,  and  extendeth  south- 
ward to  the  main  ocean,  as  far  as  Cape  May,  and  northward  to 
the  northernmost  branch  of  the  Delaware,  at  41  degrees  40  min- 
utes of  latitude,  and  crosses  over  in  a  straight  line  to  Hudson 
river."  New  York  says,  that  this  boundary  excludes  the  Hud- 
son and  New  York  bay,  &c.  And  they  deduce  title  under  the 
duke  for  all  to  the  east  and  north  of  the  New  Jersey  line.  New 
Jersey,  though  she  cannot  insist  on  her  specific  boundary  cover- 
ing these  waters,  says,  that  they  could  not  pass  as  a  general 
residuum ;  that  it  is  the  simple  case  of  a  mighty  water  flowing 
between  two  states,  each  has  a  right  adfilum  aquce. 

Commissioners  were  appointed,  in  1806,  to  settle  this  contro- 
versy, but  the  attempt  proved  abortive.  The  New  Jersey  com- 
missioners claimed  adfilum  aquce.  They  reported,  and  the  legisla- 
ture gave  their  sanction  to  the  claim  setup  by  the  commissioners. 

On  the  3d  of  October,  1807,  they  passed  the  first  act  to  sup- 
port the  jurisdiction  of  the  state,  (Rev.  Laws  533)  in  which  they 
assert  the  rights  of  this  state,  and  put  them  upon  solid  and  satis- 
factory ground.  The  claim  is  only  ad  filum  aquce.  This  was  a 
wise  and  just  law ;  it  means  what  it  professes,  to  support  the  juris- 
diction of  the  state,  and  stops  there.  This  is  the  mother  act, 
but  some  of  the  offspring  which  they  gave  her  were  spurious, 
and  engendered  for  very  different  purposes. 

In  January,  1811,  (Rev.  Laws  547)  the  steam-boat  business 
came  up,  and  the  legislature  departed  from  the  true  legal  con- 
stitutional ground,  and  set  up  one  rotten  and  unsound.  "And 
whereas  the  citizens  of  New  Jersey  have  a  full  and  equal  right 
to  navigate,  and  have,  and  use  vessels  or  boats  on  all  the  waters 
lying  between  the  states  of  New  Jersey  and  New  York,  in  all  cases 
whatsoever,  not  prohibited  by  the  constitution  of  the  United 
States."  This  denies  the  right  of  New  York  to  pass  these  laws, 
by  asserting  a  full  right  to  all  sorts  of  navigation  in  New  Jer- 
sey on  the  waters  of  New  York,  and  is  bottomed  on  the  opin- 
ion, that  by  the  power  given  to  congress  to  regulate  navigation 
and  the  coasting  trade,  the  states  were  deprived  of  the  power  to 


250  NEW  JERSEY  SUPKEME  COUflT. 

Gibbons  v.  Livingston. 

pass  any  acts  giving  particular  privileges.  This  is  altogether 
erroneous,  and  is  otherwise  decided.  Then,  as  a  general  princi- 
ple, without  reference  to  the  constitution,  this  assertion  is  base- 
less, for,  by  the  public  law,  the  jurisdiction  is  adfilum  aquce,  and 
each  has  a  right  to  regulate  its  own.  Upon  this  ground  rests 
ferries  and  tolls,  &c. 

Yet  this  rotten  steam-boat  principle  is  adopted  in  this  very  act 
of  February,  1820,  (Rev.  Laws  689)  to  support  the  jurisdiction 
of  the  state,  and  its  provisions  apply  to  acts  on  all  the  waters 
between  the  two  states.  2nd  section — "any  of  the  waters  be- 
tween the  ancient  shores,"  &c.  3d  section — "the  waters,1'  that  is 
to  say,  "any  of  the  waters."  It  is  palpable,  then,  that  in  thin 
act  of  February,  1820,  the  legislature  set  up  the  same  claim  an 
in  that  of  1811,  and  on  the  same  ground,  to  wit,  that,  by  the 
constitution  of  the  United  States,  the  states  are  deprived  of  the 
power  of  passing  such  acts.  But  this  is  a  mistake  altogether. 
New  York  had  a  right  to  regulate  her  own  waters  so  as  to  give 
citizens  an  exclusive  right,  for  a  limited  time,  to  a  new  species 
of  navigation.  And  having  this  right,  the  legislature  of  New 
Jersey  can  have  no  constitutional  right  to  punish  a  man  for 
setting  up  and  maintaining  his  title  under  such  act. 

It  may  again  be  said,  that  this  provision  is  retaliatory ;  that 
New  York  had,  by  their  acts  and  judicial  opinions,  considered 
acts  done  in  the  waters  of  New  Jersey  as  contrary  to  their  laws, 
and  had  authorized  seizure  of  boats  for  navigating  with  steam  in 
those  waters;  and,  upon  the  principle  of  retortion  or  reprisal,  our 
legislature  might,  and  have  done  the  same.  I  deny  the  right  of 
one  state  of  this  Union  to  adopt,  against  another,  the  doctrine  of 
retortion  and  reprisal,  both  on  the  ground,  that  such  conduct  is 
against  the  principles  and  terms  of  the  constitution  of  the 
United  States,  and  upon  general  principles  of  public  law. 

Our  political  system  is  that  of  a  confederated  republic,  no 
Btate  stands  alone.  There  are  relative  rights  arising  out  of  this 
organization,  different  from  those  which  exist  between  foreign 
nations.  The  peace  and  happiness  of  the  whole,  the  very  exist- 
ence of  the  Union,  requires  that  the  legislative  acts  of  one  state 
should  not  be  under  the  legal  control  of  another.  A  system  of 
hostile  legislation  between  the  states  is  inconsistent  with  the  na- 
tional constitution.  One  great  object  of  that  was,  to  put  an  end  to 
it,  to  erect  a  barrier  against  the  belligerent  legislation  of  different 


NOVEMBER  TEEM,  1822.  251 

Gibbons  v.  Livingston. 

states.  Strong  indications  of  such  a  disposition  had  shewn  itself. 
It  was  seen  that  such  a  state  of  things  was  incompatible  with  the 
tranquility  and  permanency  of  the  Union.  The  consequences 
were  certain ;  each  state  would  defend  its  own  claims,  and  its 
own  citizens.  The  injured  would  apply  for  redress ;  retaliation 
and  reprisal  would  be  resorted  to;  they  would  begin  with  words, 
and  end  with  blows.  To  prevent  all  this,  the  constitution  takes 
from  the  states  those  powers,  the  imprudent  exercise  of  which 
would  most  likely  produce  this  state  of  things,  as  the  power  of 
making  tender  laws,  ex  post  facto  laws,  laws  violating  contracts, 
laws  of  reprisal  or  war.  Full  faith  and  credit  are  to  be  given  to 
the  public  acts  or  laws  of  each  state  in  every  other. 

Now  do  not  these  provisions,  in  their  very  terms  and  princi- 
ples, condemn  and  put  down  all  retaliatory  legislation  ?  If  there 
can  be  neither  reprisal  or  war,  and  if  full  credit  is  to  be  given  to 
the  legislative  acts  of  each  state  in  all  the  rest,  how  can  they  be 
met  and  controlled  by  respondent  legislation  ?  In  truth,  it  seems 
that  our  legislature  have  the  same  right  to  declare  war  against 
New  York;  and  the  act  of  1811  is  substantially  an  act  of  marque 
and  reprisal,  authorizing  the  seizure  of  the  boat  of  any  citizen  of 
New  York.  6  Cranch  137,  138,  144.  In  the  Chancery  case  in 
New  York,  Kent  considers  all  these  acts  retaliatory  and  void. 
Livingston  v.  Gibbons,  4  John.  Chan.  Rep.  571. 

Then  it  may  be  asked,  must  New  Jersey  and  her  citizens  sub- 
mit? is  there  no  redress?  The  answer  is  at  haod;  she  has  all  the 
remedy  that  is  consistent  with  her  own  interest,  and  that  of  her 
citizens.  Is  the  injury  to  the  state  ?  does  New  York  claim,  and 
are  these  proceedings  by  their  legislature  infringements  upon  part 
of  our  territory?  If  it  is  so,  the  constitution  has  given  the  rem- 
edy. Constitution  of  the  United  States,  art.  3,  sec.  1.  It  has  erected  a 
tribunal,  which  is  a  common  arbiter  for  determining  questions  of 
this  kind.  Why  not  proceed  against  New  York  in  the  Supreme 
Court  of  the  United  States?  If  a  citizen  of  New  Jersey  is  un- 
justly vexed  under  an  illegal  act  of  the  legislature  of  New  York, 
the  courts  of  the  United  States  are  open  to  him.  The  right  to 
resort  to  that  tribunal  is  vested  by  the  constitution ;  it  is  not  de- 
pendant on  congress.  Congress  cannot  prevent  the  operation  of 
this  section  of  the  constitution.  If  they  will  not  pass  a  law  declaring 
how  process  shall  be  served  on  a  state,  the  Supreme  Court,  upon 
a  bill  filed,  would  make  the  proper  rules  to  bring  in  New  York. 


252  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

The  rule  stated  in  3  Dallas  335,  is  still  in  force,  applicable  to 
all  cases  in  which  a  state  may  yet  be  sued.  These  acts  of  ours 
are  not  even  within  the  doctrine  of  retortion,  as  stated  by  the 
writers  on  public  law.  That  right  exists  only  between  foreign 
nations  who  may  make  war,  and  is  intended  to  precede  or  prevent 
it.  And  what  is  it?  If  one  nation  oppresses  the  subjects  of 
another,  residing  in  its  territory,  the  nation  whose  subjects  are 
injured  may  do  the  same  to  the  subjects  of  the  other,  resident 
in  the  injured  country.  It  grows  out  of  oppressive  legislation 
against  the  individuals  of  a  particular  foreign  nation,  by  which 
they  are  put  on  a  worse  footing  than  the  citizens  of  the  country 
where  they  are,  or  other  foreigners.  But  a  municipal  law,  bind- 
ing every  body,  cannot  be  the  subject  of  retortion  or  legislative 
reprisal.  Now  the  laws  in  question  are  of  this  character,  gen- 
eral, binding  every  body. 

If,  then,  this  act  of  1820  does  mean  to  give  an  action  against 
a  man  for  enjoining  a  citizen  of  this  state  for  navigating  any  of 
the  waters  between  the  ancient  shores  of  New  Jersey  and  New 
York,  though  those  waters  are  within  the  acknowledged  territory 
of  New  York,  it  is  void,  and  void  in  toto.  It  is  void  although  the 
interruption  was  in  New  Jersey,  for  a  section  in  a  statute  con- 
taining a  single  connected  proposition,  if  void  because  extended 
too  far,  must  bo  altogether  void:  you  cannot  divide  it.  This 
declaration  goes  for  the  whole;  the  gravamen  is,  that  he  was 
interrupted  from  navigating  between  the  ancient  shores.  The 
court  could  not  divide  it,  nor  the  jury,  in  an  assessment.  Upon 
the  whole  case  it  is  then  submitted,  that  the  defendant  is  entitled 
to  judgment  on  this  demurrer. 

Wood,  in  answer.  In  this  action  two  distinct  subjects  are  pre- 
sented for  the  consideration  of  the  court.  1.  Supposed  defects  in  the 
cause  of  action,  which,  if  they  really  exist,  must  arrest  the  judg- 
ment. 2.  A  supposed  failure  on  the  part  of  the  plaintiff  to  prove  the 
issue  on  his  part,  by  the  facts  exhibited  in  the  demurrer  to  evidence. 
If  the  issue  is  completely  proved,  but  the  cause  of  action  is  defec- 
tive, the  judgment  will  be  arrested,  and  each  party  pay  his  own 
costs.  If  the  cause  of  action  is  good,  but  there  is  a  failure  in  the 
proof,  judgment  will  be  rendered  for  the  defendant,  with  costs. 

I  shall  answer  all  the  objections  taken  to  this  suit  by  the  de- 
fendant's counsel,  though  not  in  the  order  in  which  he  has  stated 


NOVEMBER  TERM,  1822.  253 

Gibbons  v.  Livingston. 

them.  The  action  itself  is  by  him  considered  defective,  because 
the  act  of  New  Jersey,  on  which  it  is  founded,  is  unconstitutional. 
This  is  the  only  objection  to  the  cause  of  action,  as  spread  upon 
the  record. 

The  act  on  which  this  suit  is  brought,  is  only  a  part  of  a  sys- 
tem pursued  and  adopted  by  our  legislature,  for  the  purpose  of 
resisting  what  they  consider  an  unfounded  claim  on  the  part  of 
New  York  to  the  exclusive  right  to  all  the  waters  of  the  bay 
of  New  York  and  of  the  Hudson  river.  All  the  acts  of  our 
legislature,  upon  this  subject,  are  to  be  taken  together.  They 
are  in  pan  materia,  and  a  view  of  the  whole  will  throw  light 
upon  the  construction  of  the  one  now  in  question. 

The  laws  of  New  York  give  to  Fulton  and  Livingston,  and 
their  assignees,  the  exclusive  right  to  navigate  with  steam-boats 
all  the  waters  of  the  state  of  New  York.  By  an  act  passed  in 
1808,  New  York  asserts  an  exclusive  right  to  the  waters  of  the 
Hudson,  including  the  bay  of  New  York.  Livingston  v.  Gibbons 
and  Ogden,  John.  Chan.  Rep.  48. 

In  this  argument  I  shall  not  bring  in  question  the  constitution- 
ality of  the  New  York  laws,  which  give  the  monopoly  to  Fulton 
and  Livingston.  It  is  unnecessary  for  my  purpose.  Still,  as  ir,. 
terpreted  and  enforced  in  their  courts,  they  are  manifestly' 
oppressive  in  their  operation  upon  the  citizens  of  New  Jersey. 

1.  They  prevent  our  citizens  from  navigating  with  steam-boatu 
from  a  port  in  New  Jersey  to  a  port  in  New  York,  and  confino 
such  navigation  to  their  monopolists.  A  state,  in  creating  sucb 
monopolies,  should  confine  it  to  the  navigation  from  port  to  port 
in  their  own  territory.  The  communication  between  the  ports 
of  New  York  and  New  Jersey,  with  steam-boats  or  otherwise, 
should,  in  fairness  and  justice,  be  restrained  and  modified  (where 
it  is  proper  so  to  do)  not  by  the  acts  of  one  state,  but  by  tho 
concurrent  acts  of  both.  It  is  no  answer  to  say,  that  this  monop- 
oly to  Fulton  and  Livingston  was  upon  a  meritorious  considei  a- 
tion.  New  Jersey  should  have  been  consulted,  and  had  a  ri<3  nt 
to  judge  for  herself.  When  New  York  dispenses  her  favours, 
though  meritoriously,  she  should  not  do  it  at  the  expense  of  her 
neighbours.  The  effect  of  this  New  York  monopoly,  before  our 
legislature  interfered,  was  to  give  to  Fulton  and  Livingston,  and 
their  assignees,  the  exclusive  navigation,  with  steam-boats,  of  all 
our  waters,  so  far  as  respected  the  communication  in  that  way 


254  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

between  the  two  states.  Hence  those  monopolists  granted  the 
exclusive  right  of  such  navigation  to  one,  in  our  waters  adjacent 
to  Elizabeth  Town,  to  another  in  the  river  Rariton,  to  a  third  in 
the  waters  of  Monmouth  county. 

2.  These  New  York  monopoly  laws,  in  the  way  in  which  they 
are  enforced,  prevents  the  citizen  of  New  Jersey  from  navigat- 
ing, with  steam-boats,  the  waters  of  the  bay  of  New  York  and 
part  of  the  Hudson  river,  over  part  of  which  we  have  an  exclu- 
sive territorial  right,  and  over  all  of  which  we  have  a  right  of  nav- 
igation, in  common  with  the  state  of  New  York  and  hercitizens; 

These  are  the  injuries  growing  out  of  the  operation  of  the 
New  York  laws,  of  which  New  Jersey  complains.  To  redress 
these  injuries,  the  law  in  question,  on  which  this  suit  is  founded 
ind  all  the  other  acts  relating  to  the  subject,  were  passed.  They 
oave  produced  a  good  effect:  steam-boats,  owned  by  our  citi- 
tens,  are  constantly  plying,  under  their  protection,  between  our 
T>orts  and  the  ports  of  New  York.  The  price  of  a  passage  in  a 
Bteam-boat  from  New  Brunswick  to  New  York  is  about  one- 
third  of  what  it  was  formerly,  when  the  New  York  monopolists 
excluded  our  citizens.  These  acts  of  our  legislature  were  not 
passed  in  heat  and  without  deliberation  :  they  are  part  of  a  sys- 
tem of  legislation  long  pursued  in  New  Jersey,  under  the  sanc- 
tion of  all  parties,  the  object  of  which  is  to  resist  the  encroach- 
ment on  the  part  of  New  York.  Steam-boats  are  particularly 
protected,  only  because  the  claims  of  New  York,  so  unwarrant- 
able, were  brought  practically  to  bear  upon  that  subject. 

The  law  in  question  is  constitutional,  and  our  legislature  were 
authorized  to  pass  it  for  the  purpose  of  repelling  and  obviating 
both  of  the  injuries  above  stated. 

1.  Admit  the  laws  of  New  York  creating  this  monopoly  are 
constitutional,  and  even  that  the  exclusive  claim  of  New  York 
to  the  Hudson  river  and  bay  is  valid,  and  that  the  decrees  of 
her  chancery  are  valid,  yet  I  shall  contend,  that  New  Jersey 
had  a  right  to  pass  the  law  in  question  to  repel  their  oppressive 
operation  upon  their  citizens,  by  excluding  them  from  an  equal 
right  of  navigation,  with  steam-boats,  between  the  ports  of  the 
two  states. 

This  law  is  an  act  of  retortion.  Vattel  B.  2,  ch.  18,  sec.  341, 
p.  283,  et  vide  sec.  339.  As  between  independent  states,  such  a 
power  unquestionably  exists.  If  we  are  deprived  of  it  by  the 


NOVEMBER  TERM,  1822.  255 

Gibbons  v.  Livingston. 

federal  constitution,  the  defendant  must  shew  how.  An  act  is 
presumed  to  be  constitutional,  unless  it  is  clearly  shewn  to  be 
otherwise.  9  John.  564.  Powers  not  delegated  to  the  United 
States,  nor  prohibited  to  the  states,  are  reserved  to  the  states  or 
the  people.  Vide  amendment  to  the  Federal  Constitution  art.  10. 
The  rights  of  a  state  remain  after  the  adoption  of  the  constitution 
as  before,  except  where  they  are  abridged  by  that  instrument. 
Sturges  v.  Crowninshield,  4  Wheat.  193.  There  must  be  a  direct 
incompatibility  between  the  power  granted  to  the  federal  govern- 
ment, and  the  exercise  of  it  by  a  state  to  deprive  the  state  of  it. 
Houston  v.  Moore,  5  Wheat.  17.  Federalist,  No.  32.  9  John.  576. 
From  these  authorities  we  may  extract  two  rules  of  construction, 
which  will  safely  guide  us  through  this  labyrinth.  1.  A  power 
not  granted  to  the  United  States'  government  is  reserved  to  the 
states.  2.  A  grant  of  power  to  the  United  States'  government 
does  not  destroy  the  exercise  of  the  same  power  by  a  state, 
unless  there  is  a  manifest  and  direct  repugnancy,  and  until  they 
are  brought  practically  into  collision. 

To  establish  the  unconstitutionality  of  the  law  of  New  Jersey 
on  which  this  suit  is  brought,  the  defendant  must  shew,  either 
that  it  was  prohibited  by  some  clause  in  the  federal  constitution, 
or  that  there  is  a  direct  and  manifest  repugnancy  between  it  and 
the  exercise  of  some  power  granted  to  the  federal  government. 
Several  clauses  are  relied  on,  none  of  .which  will  answer  his  pur- 
pose. 

It  is  not  repugnant  to  the  power  given  to  congress  to  declare 
war,  and  to  grant  letters  of  marque  and  reprisal.  When  the  pow- 
ers of  the  constitution  prohibited  the  states  from  declaring  war, 
they  mount  war  in  its  strict  and  usual  signification.  It  did  not 
embrace  the  power  of  granting  letters  of  marque  and  reprisal,  or 
they  would  not  have  mentioned  the  latter  in  express  terms.  This 
shews  that  that  instrument  is  cautiously  worded  ;  that  terms  are 
used  appropriately;  and  that  a  fanciful  construction  ought  to  be 
avoided.  Acts  of  retortion  are  not  acts  of  war;  they  are  pacific. 
"When  resorted  to  between  independent  states,  they  are  intended 
to  prevent  the  necessity  of  resorting  to  war.  Nor  can  the  passing 
of  such  an  act  be  considered  a  granting  of  letters  of  marque  and 
reprisal.  Letters  of  marque  and  reprisal  are  a  commission  to 
attack  the  subjects  of  a  foreign  state  on  the  high  seas  beyond  the 
limits  of  the  state,  seize  their  property,  and  put  it  in  sequestra- 


256  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

tion.  It-  is  a  hostile  net  of  aggression.  Marten's  Law  of  Nations, 
270.  1  Black.  Com.  258.  These  terms  were  perfectly  under- 
stood by  the  framers  of  our  constitution,  and  they  are  used  in 
the  sense  in  which  they  are  ordinarily  understood  by  enlightened 
jurists.  They  did  not  think  the  prohibition  to  declare  war 
embraced  the  granting  of  letters  of  marque  and  reprisal,  nor  that 
the  latter  embraced  an  act  of  municipal  legislation,  in  its  nature 
pacific,  and  intended  to  operate  within  the  jurisdictional  limits  of 
the  state.  The  defendant's  counsel  says,  that  one  great  object  of 
the  federal  constitution  was,  to  create  a  barrier  against  the  con- 
flicting legislation  of  different  states.  If  this  object  had  been  ir 
their  view,  they  certainly  would  have  used  terms  expressly  t/, 
convey  that  idea,  and  not  put  the  counsel  to  the  trouble  of  col- 
lecting it  by  inference  and  ingenious  conjecture.  But  it  is  said 
that  this  conflicting  legislation  might  lead  to  war.  This,  however 
cannot  take  place,  for  the  sword  is  taken  from  the  states.  Thej 
may  legislate  as  much  as  they  please,  but  they  cannot  fight.  If  a 
state  is  bound  to  submit  to  the  oppressive  legislation  of  a  foreign 
state,  it  is  more  likely  to  lead  to  rebellion  than  if  she  can  defend 
herself  by  counter  legislation.  Many  acts  are  oppressive  upon  a 
neighbouring  state  and  yet  are  constitutional,  and,  of  course,  no 
redress  can  be  had  in  the  federal  courts.  Many  acts  of  a  state 
may  be  lawful  in  themselves,  and  yet  injurious  to  another.  Valid 
283.  Important  sovereign  powers  are  reserved  to  the  states, 
which  are  intended  as  checks  to  the  federal  government,  and,  of 
course,  cannot  be  controlled  by  that  government,  or  they  would 
be  no  longer  acts  of  sovereignty.  Some  inconveniences  may 
result  from  this  state  of  things,  but  they  are  overbalanced  by  the 
advantages.  That  a  confederated  republican  government  must 
be  thus  checked  and  limited,  to  exist  over  an  extensive  territory, 
is  an  opinion  sanctioned  by  the  ablest  writers  and  by  all  experi- 
ence. The  opinion  of  Chancellor  Kent  (4  John.  Chan.  Rep.} 
is  cited,  who  considers  this  law  in  question  as  a  reprisal,  and  pro- 
hibited by  the  constitution,  and  who  gives  the  defendant,  who 
was  a  party  in  that  suit,  some  wholesome  advice.  The  chancel- 
lor seems  to  think  all  countervailing  legislation  is  a  reprisal.  In 
the  suit  in  which  the  present  plaintiff  was  prohibited  by  Chancel- 
lor Kent,  from  navigating  the  waters  in  question,  (4  John.  Chan. 
Rep.  48)  he  grants  the  injunction  expressly  on  the  ground,  that 
New  York  had  asserted  such  exclusive  jurisdiction  to  the  waters 


NOVEMBER  TERM,  1822.  257 

Gibbons  v.  Livingston. 

of  the  Hudson.  The  act  of  their  legislature,  in  which  it  was  so 
asserted,  passed  in  1808.  John.  Chan.  Rep.  48,  Our  act,  assert- 
ing a  territorial  jurisdiction  to  the  middle  of  the  river,  passed 
in  1807.  Rev.  Laws  533.  Their  act  was  subsequent  to  ours;  was 
an  act  of  countervailing  legislation,  and,  of  course,  a  reprisal,  and 
unconstitutional  in  the  opinion  of  the  chancellor,  as  since  ex- 
pressed. It  remains  for  that  enlightened  jurist  to  reconcile  his 
decision  in  the  one  case,  with  his  opinion  expressed  in  the  other. 

The  judicial  power  of  the  federal  government,  it  is  said,  ex- 
tends to  this  case,  and,  therefore,  our  law  is  unconstitutional.  1. 
The  judicial  power  does  not  extend  to  the  injury.  It  can  give 
this  state  no  redress.  Our  citizens  are  injured  by  a  law  of  New 
York,  which  is  supposed  to  be  constitutional :  they  .are  shut  out 
from  participating  in  the  intercourse  between  the  two  states  by 
employing  steam-boats.  This  is  not  a  common  law  injury:  a 
federal  court  can  only  redress  such  injuries  as  one  state  may  re- 
ceive from  another  in  violation  of  some  common  law  principle. 
There  is  no  legislative  power  given  to  the  federal  government 
over  the  states,  to  create  new  and  extraordinary  remedies  for 
the  injuries  which  one  state  may  sustain  from  the  oppressive  leg- 
islation of  another.  The  only  way  to  meet  and  prevent  such 
injuries,  is  by  countervailing  legislation. 

2.  If  the  judicial  power  of  the  federal  government  did  extend 
to  the  case,  yet  it  does  not  impliedly  take  this  power  from  the 
state.  They  are  concurrent;  there  is  no  manifest  repugnancy  in 
the  power  of  a  state  to  redress  herself  by  conflicting  legislation, 
and  her  power  to  resort  to  a  judicial  tribunal  for  redress.  Such 
concurrent  powers  are  familiar  to  the  law.  A  man  may  enter 
upon  lands,  or  bring  ejectment,  may  seize  his  personal  property 
in  the  possession  of  another,  or  bring  trover  for  it.  3  Black.  Com. 

The  defendant's  counsel  also  rely  upon  that  clause  in  the  con- 
stitution which  says,  that  full  faith  and  credit  are  to  be  given  to 
the  acts,  records,  and  judicial  proceedings  of  a  foreign  state.  By 
this  it  is  meant,  that  they  shall  have  the  effect  of  record  evidence, 
and  conclusive  as  to  the  fact.  The  terms,  faith  and  credit,  con- 
vey the  idea  of  evidence.  It  relates  only  to  the  degree  of  evi- 
dence which  is  to  bo  attached  to  foreign  acts  and.  judicial 
proceedings,  and  was  not  intended  to  give  them  any  greater  ope- 
ration and  efficacy  than  they  had  before.  At  common  law,  many 
acts  and  judgments  of  foreign  states  were  carried  into  effect  in 

VOL.  i.  E 


258  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

England.  All  statutes  of  foreign  countries  concerning  marriages, 
and  all  marriages  pursuant  to  them,  would  be  recognized  in  Eng- 
land if  the  parties  should  come  there,  and  the  reciprocal  duties 
of  husband  and  wife  would  be  enforced.  All  judgments  of  foreign 
countries,  founded  on  contracts,  and  where  there  is  a  moral  obli- 
gation to  perform  them,  would  be  enforced  in  England.  But  the 
more  positive  laws  of  a  foreign  state,  accompanied  with  no  ante- 
cedent moral  obligation,  and  judgments  founded  upon  them,  are 
never  enforced  or  regarded  at  common  law,  but,  on  the  contrary, 
if  injurious  and  oppressive  upon  the  subjects  of  Great  Britain, 
they  are  retorted  upon  by  their  parliament.  This  doctrine,  which 
is  illustrated  by  Huberus,  is  not  peculiar  to  England,  but  is  adopted 
in  all  civilized  countres,  and  prevailed  in  these  states  when  the 
federal  constitution  was  adopted.  The  records  of  foreign  judg- 
ments, however,  were  not  conclusive  evidence  of  the  debt,  but 
they  might  be  rebutted.  This  provision  in  the  constitution  was 
intended  to  make  such  records  of  a  foreign  state,  as,  upon,  the 
principles  then  prevailing,  were  enforced  in  a  state  court,  conclu- 
sive, and  not  morel}"  prima  facie  evidence  of  the  debt.  It  was  not 
intended  to  give  to  the  acts  and  judicial  proceedings  of  a  foreign 
state  any  greater  efficacy  or  operation  than  they  had  before.  It 
addresses  itself  to  the  courts  of  a  state,  and  lays  down  for  them 
a  rule  of  evidence.  It  is  not  addressed  to  the  state  legislatures,  to 
deprive  them  of  the  power  of  counteracting  the  oppressive  legis- 
lation of  a  foreign  state.  If  it  imposes  any  restraint  upon  the 
state  legislatures,  it  does  it  only  impliedly,  and  only  so  far  as  to  pre- 
vent them  from  restraining  the  operation  and  efficacy  of  such 
foreign  acts  and  judicial  proceedings  of  a  sister  state  as  were 
enforced,  by  law,  when  the  constitution  was  adopted.  The  order 
in  question  of  the  chancellor  of  New  York,  authorizing  the 
injunction  of  which  we  complain,  was  not  such  a  decree  as  would, 
upon  common  law  principles,  have  been  enforced  in  our  courts 
before  the  adoption  of  the  federal  constitution,  and,  of  course, 
this  clause  of  the  constitution  does  not  apply  to  it.  But 

2.  Admitting,  for  the  sake  of  argument,  that  we  have  no  right 
to  retort,  by  our  acts,  upon  the  oppressive  legislation  of  the  state 
of  .New  York,  and  that  the  judicial  proceedings  of  their  state  are 
to  have  a  binding  operation  in  our  state,  and  cannot  be  contra- 
vened here,  still  we  contend,  that  the  statute  of  New  Jersey  in 
is  constitutional.  New  Jersey,  as  before  observed,  has 


NOVEMBER  TERM,  1822.  259 

Gibbons  v.  Livingston. 

an  exclusive  territorial  right  to  the  middle  of  the  bay  of  New 
York,  and  of  the  Hudson,  so  far  up  as  her  territories  extend 
along  that  river,  and  a  common  right  of  navigation  over  every 
part  of  those  waters.  The  claim  of  New  York  to  those  waters, 
to  the  exclusion  of  New  Jersey,  is  founded  upon  the  idea,  that 
the  grant  from  the  duke  of  York  to  Berkley  and  Carteret  does 
not  embrace  those  waters,  or  any  part  of  them.  Considering  it 
as  the  transfer  of  a  territory,  with  the  powers  of  government, 
made  for  great  public  purposes,  and  to  be  construed  upon  the 
principles  of  public  law,  no  jurist  can  doubt  the  correctness  of 
the  claims  of  New  Jersey.  New  York  also  sets  up  a  sort  of  pre- 
scriptive right,  derived  from  long  continued  possession.  But  such 
a  possession,  if  it  could  have  such  an  effect,  should  have  been 
exclusive,  whereas  it  is  notorious  that  the  citizens  of  New  Jersey 
have  always  used  those  waters.  Though  the  respective  territorial 
rights  are  several,  each  state  going  to  the  filum  aquae,  yet,  the 
right  of  navigation  is  common  between  the  two  states.  Formerly 
all  the  rights  of  two  nations,  as  well  territorial  as  otherwise,  in  a 
navigable  water,  which  was  the  boundarj^  between  them,  were 
common  and  undivided.  Grotius  B.  2,  chap.  3,  sec.  8.  And  the 
right  of  navigation  must,  in  the  nature  of  things,  still  continue 
common,  otherwise  it  could  not  be  enjoyed.  The  vessels  of  a  na- 
tion could  not  navigate  on  one  side  of  the  flum  aqiice.  Upon 
these  principles  we  settled  with  Pennsylvania  in  1782,  in  respect 
to  the  Delaware,  (Rev.  Laics  57)  principles  reasonable,  fair,  and 
equal.  The  laws  of  New  York,  then,  giving  this  monopoly,  do 
not  extend  to  the  waters  in  question,  so  far  as  respects  the  citi- 
eens  of  New  Jersey.  New  York  has  no  power  to  legislate  over 
the  rights  of  this  state,  either  of  territory  or  navigation,  and 
any  decision  of  a  court  of  New  York,  attempting  to  extend  this 
monopoly  thus  far,  is  void,  as  against  New  Jersey  and  her  citi- 
zens, and  we,  under  our  statute,  may  recover  damages  for  the 
proceedings  of  the  defendant  under  such  void  decision. 

It  is  said,  that  though  New  York  cannot  grant  a  monopoly  on 
our  side  of  the/zftm  aquce,  yet  they  may  on  our  side.  She  may 
regulate,  and  we  must  enjoy  subject  to  such  regulation.  I  admit, 
that  the  mere  right  of  the  citizens  of  New  Jersey,  or  of  any  other 
state,  to  use  the  waters  of  New  York,  as  derived  from  the  federal 
constitution,  is  subject  to  such  regulation.  But  New  Jersey,  as  a 
state,  and  independently  of  her  privileges  under  the  federal  con- 


260  NEW  JERSEY  SUPEEME  COURT. 

Gibbons  T.  Livingston. 

Btitution,  (and  this  is  a  view  of  the  subject  to  which  the  defen- 
dant's counsel  has  not  adverted)  has  this  common  right. 

In  the  famous  dispute  about  the  navigation  of  the  Scheldt, 
which  agitated  Europe  in  the  last  century,  the  claims  of  the  em- 
peror Joseph,  which  were  strongly  supported,  would  have  been 
indisputable  if  he  had  owned  the  territory  on  one  side  of  that  river 
to  its  mouth  of  navigation.  This  right  of  navigation  in  New  Jer- 
sey, over  these  waters,  is  a  public  right,  and  part  of  the  public 
domains  of  the  state.  See  Hole's  Treatise  in  Hargrave's  Law 
Tracts,  and  Mundy  v.  Arnold,  ante  71,  76.  One  state  cannot  legis- 
late over  the  rights  of  another  state.  They  are  equal  and  co- 
ordinate. Vattel  Prelim,  sec.  18.  New  York  may  pass  laws  reg- 
ulating her  territorial  right  to  the  filum  aquas,  but  not  so  as  to 
bind  the  right  of  navigation  in  New  Jersey  and  her  citizens.  The 
right  of  territory  in  public  waters  is  subordinate  and  secondary. 
There  is  no  modern  Neptune  who  can  command  the  waves  to 
retire,  while  the  earth  below  yields  forth  her  fruits.  The  right 
of  navigation,  especially  in  a  commercial  country,  is  every  thing, 
Even  the  public  personal  property  of  one  sovereign  in  the  terri- 
tories of  another  is  exempt  from  the  jurisdiction  of  the  latter. 
The  Schooner  Exchange  v.  M'Faddon  et  al.  7  Cranch  116.  "When 
the  chancellor  of  New  York,  then,  attempts  to  restrain,  by 
injunction,  a  citizen  of  New  Jersey  from  navigating  these  waters 
with  steam-boats,  on  the  ground,  that  the  exclusive  right  of 
such  navigation  is  vested  by  the  New  York  laws  in  certain 
monopolists,  ho  goes  farther  than  those  laws  will  warrant  be- 
cause those  laws  do  not,  and  cannot  affect  the  common  right  of 
navigation  in  the  state  of  New  Jersey  and  her  citizens ;  and 
when  the  chancellor  attempts  thus  to  affect  them,  he  steps  beyond 
his  jurisdictional  limits,  and,  of  course,  his  proceedings  are  void. 
Admitting  a  valid  decree  of  the  chancery  of  New  York  may  not 
be  impugned  in  this  state,  yet  a  void  decree,  which  is  coram  non 
judice,  unquestionably  may. 

It  may  be  said,  that  our  courts  have  no  right  to  question  the 
jurisdiction  of  the  chancellor  of  New  York ;  that  he  had  a  right 
to  judge  of  the  extent  of  the  operation  of  the  New  York  laws, 
and  whether  New  Jersey  really  has  a  common  right  of  naviga- 
tion over  the  waters  in  question,  which  those  laws  cannot  reach  ; 
and  that  if  he  has  erred,  the  plaintiff  must  resort  to  the  federal 
courts  by  way  of  appeal.  But  there  is  no  doubt,  that  a  court  of 


NOVEMBER  TERM,  1822.  261 

Gibbons  v.  Livingston. 

co-ordinate  powers  may  decide  collaterally  upon  the  jurisdiction 
though  not  upon  the  regularity,  of  another  court;  and  if  it  appears 
that  the  latter  stepped  beyond  its  jurisdiction,  it  will  consider 
its  proceedings  as  void.  Admiralty  courts  consider  the  judg- 
ments of  foreign  admiralty  courts  as  final  and  conclusive,  but 
still  they  reserve  the  right  to  inquire,  first,  whether  the  latter  are 
properly  constituted?  and  second,  whether  they  have  jurisdiction 
over  the  subject  matter?  Rose  v.  Himely,  4  Cranch  241.  Suppose 
New  York,  by  statute,  should  assert  a  right  to  the  whole  county 
of  Bergen,  and  her  chancellor  should  decree  possession  of  certain 
lands  in  that  county  to  be  delivered  to  the  plaintiff,  in  a  suit 
before  him,  by  means  of  which  the  occupier  should  be  turned 
out  of  possession;  if  the  latter  should  bring  trespass  in  our 
court,  could  the  party  to  that  decree  rely  upon  it  as  a  defence, 
and  would  our  court  be  shut  out  from  inquiring  into  the  consti- 
tutionality of  that  decree  and  the  jurisdiction  of  the  chancellor? 
If  so,  one  state,  by  its  statutes  and  decrees,  can  completely  sus- 
pend the  jurisdiction  of  another  state,  to  any  extent,  until  the 
latter  can  get  a  decision  in  its  favour  in  the  federal  court. 

It  is  said,  that  New  York  has  a  right  to  pass  laws  regulating 
her  ports.  Suppose  she  has,  and  that  our  common  right  of  navi- 
gation may  be  affected  by  such  port  regulations,  yet  it  will  not 
be  pretended,  that  these  monopoly  laws  were  passed  for  that 
purpose,  and  can  be  protected  by  that  view  of  the  subject. 

It  is  said,  that  if  our  claim,  as  spread  upon  the  pleadings,  is 
valid,  yet  the  plaintiff  has  not  supported  his  issue.  On  a  demur- 
rer to  evidence,  the  court  will  draw,  in  favour  of  the  plaintiff, 
every  conclusion  which  a  jury  might  have  drawn.  2  Tidd's 
Practice  794. 

It  is  objected,  that  the  injunction  in  the  present  case  was  not 
served  after  the  operation  of  the  law.  In  answer  to  this  we  say — 
1.  The  injunction  was  served  after  the  passage  of  the  law;  tho 
operation  of  the  law  only  was  suspended  till  the  1st  of  April, 
1820.  The  service  of  the  injunction  is  no  part  of  the  operation 
of  the  law.  2.  The  act  says,  if  any  citizen  shall  be  restrained  or 
enjoined,  &c.  It  is  immaterial  when  the  injunction  was  served,  if 
the  operation  of  it  continues  the  plaintiff  is  restrained.  But  it  is 
said,the  defendant  should  have  done  some  positive  act  of  enjoining ; 
that  is  not  necessary.  Upon  a  fair  construction  of  our  statute,  it 
was  his  duty,  in  order  to  exempt  himself  from  its  operation,  to 


262  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

do  all,  when  requested,  which  ought  to  be  done  on  his  part  to 
pot  an  end  to  the  injunction.  He  is  called  upon  for  that  purpose, 
and  declines  giving  any  answer.  An  actual  refusal  is  not  neces- 
sary. Durtll  v.  Mother,  8  John.  445.  His  subsequent  petition 
to  the  chancellor  shews  his  intention  to  continue  the  injunction. 
If  A.  should  erect  a  nuisance  on  his  land  to  the  injury  of  B.  and 
should  afterwards  sell  to  C.,  on  request  C.  is  bound  to  abate  the 
nuisance.  Penruddock's  case  5,  C.  101.  In  the  present  case  Liv- 
ingston was  bound,  under  the  statute,  to  put  an  end  to  bis  injunc- 
tion. When  called  upon  to  do  so,  he  refuses  to  give  an  answer, 
and  suffers  his  injunction  to  continue. 

It  is  said,  that  this  not  the  kind  of  injunction  contemplated 
by  our  act;  that  it  refers  to  a  statutory  injunction ;  and  thai  thia 
injunction  issued  upon  the  great  general  principles  which  regu- 
late courts  of  equity  in  such  cases.  Our  act  does  not  require  that 
the  law  of  New  York  shall  expressly  authorize  and  direct  tho 
injunction  to  issue.  It  is  sufficient  that  a  law  of  New  York  is 
either  the  real  or  colourable  foundation  upon  which  a  citizen  of 
New  Jersey  shall  be  restrained  by  such  injunction  from  navi- 
gating the  waters  in  question.  A  chancellor  of  New  York  would 
not  restrain  the  citizens  of  New  Jersey  from  the  exercise  of  this 
right,  if  he  did  not  think  the  laws  of  New  York  gave  tho  exclu- 
sive right  to  the  monopolists.  If  they  do  not  expressly  direct 
the  injunction,  yet  they  lay  the  foundation  upon  which  alone 
the  injunction  is  granted,  and,  of  course,  a  citizen  of  New  Jer- 
sey may  be  said  to  be  restrained  either  by  virtue,  or  under 
colour,  of  such  laws;  by  virtue  of  them,  if  they  really  give  the 
monopoly  over  these  waters,  and  under  colour  of  them,  if  they 
do  not  really  give  such  a  monopoly,  but  are  erroneously  con- 
strued to  do  so  by  the  chancellor. 

This  act  is  not  pe'nal,  but  remedial,  and  is  to  be  liberally  construed. 
It  gives  damages  only:  the  costs  are  treble,  because,  as  the  plain- 
tiff is  put  to  the  proof  of  aots  in  a  foreign  state,  he  is  subjected  to 
extraordinary  expenses.  Costs  are  in  their  nature  remedial ;  they 
are  intended  to  reimburse  a  party,  and  they  never  do  completely 
reimburse  him.  Besides,if  the  costs  are  penal,  the  other  part  of  the 
statute,  giving  the  remedy,  is  remedial,  and  is  to  bo  liberally  con- 
strued. You  are,  in  such  cases,  to  look  to  the  mischief.  A  citi- 
zen of  New  Jersey,  when  this  law  passed,  could  not  be  re- 
strained by  a  statutory  injunction  in  New  York.  Tho  only  case 


NOVEMBER  TERM,  1822.  263 

Gibbons  v.  Livingston. 

in  which  such  injunction  was  expressly  directed,  was  in  the  case 
of  a  forfeiture,  and  there  could  be  no  forfeitures  under  their  laws 
after'the  death  of  Fulton  and  Livingston,  the  original  grantees. 
I  have  confined  myself,  in  these  observations,  to  that  section 
of  our  statute  on  which  this  suit  is  founded.  If  any  other  parts 
of  the  statute  should  be  considered  unconstitutional,  which  it  ia 
unnecessary  now  to  discuss,  and  this  section  is  valid,  it  is  suffi- 
cient for  our  purpose. 

Ogden,  in  reply.  The  great  question  is,  whether  this  defendant, 
who  is  a  citizen  of  New  York,  can  be  made  liable  to  damages 
here,  for  a  lawful  transaction  there,  in  execution  of  a  decree  or 
judgment  of  a  court  of  competent  jurisdiction  of  that  state? 
In  support  of  the  action,  it  has  been  contended — 

I.  That  it  is  founded  upon  a  statue  of  New  Jersey  to  resist 
encroachments  upon  its  territory  and  jurisdiction,  under  colour  of 
statutes  of  the  state  of  New  York. 

1.  As  to  territory.  The  state  of  New  Jersey,  by  a  statutory 
declaration,  admits  the  boundary  line  between  the  two  states  to 
be  the  midway  of  the  intermediate  waters,  and  no  statute  of  the 
state  of  New  York  has  been,  or  can  be  produced,  which  declares 
her  territory  to  extend  beyond  the  middle  of  the  baj*,  lying  be- 
tween the  Jersey  shore  and  Long  Island.  The  statute  of  New 
York,  of  April,  1808,  (the  only  statute  on  the  subject)  gives 
jurisdiction  to  the  city  and  county  of  New  York  over  certain 
offences,  within  the  Hudson  river  and  "the  bay  between  Staten 
Island  and  Long  Island,"  excluding,  as  evidently  appears  from 
the  maps,  that  part  of  the  bay  which  lies  between  Bergen  Neck, 
on  the  Jersey  shore,  and  the  shores  of  Long  Island,  in  the  state 
of  New  York,  so  that  no  part  of  the  route  between  New  York 
and  New  Brunswick  (within  which  the  trespass  is  laid  to  have 
been  committed)  falls  within  the  asserted  statutory  claim  of  New 
York,  and,  consequently,  is  not  within  the  purview  of  that  statute 
of  New  Jersey  on  which  the  present  suit  is  founded.  It  has  been 
said,  however,  that  certain  commissioners,  on  the  part  of  New 
York,  laid  claim  to  the  whole  of  the  intermediate  waters  to 
high  water  mai'k  on  the  New  Jersey  shore,  but  this  fell  short  of 
the  requirement  of  our  statute.  So,  on  the  other  hand,  the  com- 
missioners on  the  part  of  New  Jersey  claimed  Staten  Island,  and 
the  whole  waters,  to  high  water  mark,  on  the  shores  of  New 


264  NEW  JERSEY  SUPREME  COURT. 

Gibbon*  v.  Livingston. 

York,  but  neither  state,  by  statute,  ever  asserted  claims  co-exten- 
sive with  those  made  by  their  respective  commissioners. 

Again,  it  has  been  said,  that  the  chancellor  of  New  "York 
declared,  in  his  decree,  that  the  territory  of  New  York  extended 
over  the  whole  bay;  still,  however,  if  this  were  so,  it  falls  short 
of  our  statute,  which  requires,  that  the  restraint  should  be  in 
virtue,  or  under  colour,  of  some  statute  of  the  other  state. 

Besides,  it  is  not  laid  in  the  declaration,  neither  was  it  proved, 
that  plaintiff  was  ever  restrained  from  navigating  any  of  the 
waters  which  have  been  declared,  by  New  Jersey,  to  bo  within 
its  territory,  between  the  cities  of  New  Brunswick  and  New 
York,  from  which  it  is  evident  that  the  restraint  complained  of 
was  a  restraint  within  the  territory  of  the  state  of  New  York, 
and  sO,  also,  not  within  the  purview  of  our  statue,  made  in  sup- 
port of  the  jurisdiction  of  this  state,  for  it  is  the  duty  of  this 
court  to  infer,  that  the  legislature  never  intended  to  support  its 
own  jurisdiction  by  punishing  citizens  of  New  York  for  acts 
done  in  that  state,  in  execution  of  a  decree  or  order  of  a  court  of 
competent  jurisdiction  there.  To  infer  the  contrary,  would  be  to 
say,  that  the  legislature  meant  to  break  in  upon  that  fundamental 
principle  of  public  law,  whereby  no  sovereign  power  has  any  right 
to  interfere  with  the  lex  loci  or  lexfori  of  any  other  state.  Vattel 
JB.  1,  chap.  4,  sec.  5.  Ib.  sec.  46. 

2.  As  to  jurisdiction.  It  has  been  contended,  on  the  other  side, 
that  New  York  has  no  jurisdiction,  unless  concurrently  with 
New  Jersey,  over  this  intermediate  navigation  ;  that  the  act  of 
New  Jersey  of  January,  1811,  now  repealed,  made  a  declaration 
to  that  effect;  and  that  a  royal  grant  of  a  river  was  in  trust  for 
the  whole  public,  and  could  not  affect  their  common  rights  of 
navigation  and  of  fishery. 

In  answer,  it  may  be  observed — :1.  That  it  is  an  established 
principle  of  public  law,  that  the  jurisdiction  of  every  sovereign 
state  is  co-extensive  with  its  territory  over  waters  intermediate 
between  it  and  another  sovereign  state.  Vattel  B.  1,  chap.  22, 
sec.  3.  Marten,  159,  165.  Ifargrave  10. 

2.  The  state  of  New  Jersey  has  been  in  the  constant  practice 
of  exercising  jurisdiction  over  such  parts  of  these  intermediate 
waters,  which  she  claims  to  be  within  her  own  territory,  and  very 
particular}-,  in  the  act  upon  which  the  present  suit  is  founded. 
What  can  be  more  inconsistent  than  to  ask  this  court  to  exercise 


NOVEMBEE  TEIIM,  1822.  265 

Gibbons  v.  Livingston. 

a  statutory  jurisdiction  over  those  parts  of  these  waters  which 
fall  within  its  territory,  and  at  the  same  time  deny  that  the  courts 
of  New  York  have  a  similar  right?  This  is  really  to  blow  hot 
and  to  blow  cold  in  the  very  same  breath.  Besides,  it  is  believed, 
that  every  state  in  the  Union  is  in  the  constant  exercise  of  the 
like  jurisdiction. 

3.  It  is  a  mistake  to  say,  that  the  laws  of  New  York,  intended 
to  be  resisted  by  our  statutes,  give  a  preference  to  the  citizens  of 
that  state;  because  their  citizens,  equally  with  ours,  are  bound 
by  the  operation  of  those  laws.  And  so,  likewise,  under  the  con- 
stitution of  the  United  States,  the  citizens  of  every  state  are 
liable  to  the  same  disabilities,  and  entitled  to  the  same  privi- 
leges, as  the  citizens  of  the  state  in  which  they  may  happen  to 
be.  Tros  Tyrius  que :  nullo  discrimine  agetur. 

See  Constitution  of  United  States  art.  4,  sec.  2,  which  provides 
"  that  the  citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  states." 

II.  It  has  been  urged,  on  the  other  side,  that  the  statute  of 
New  Jersey  can  be  defended  on  the  principle  of  retortion  or 
retaliation,  as* found  in  public  law;  that  these  are  rights  incident 
to  sovereign  power,  rights  which  have  not  been  expressly  prohib- 
ited by  the  federal  constitution,  and  which,  consequently,  re- 
main in  the  several  states,  respectively,  as  before  its  adoption. 

In  answer,  it  may  be  observed — 1.  The  general  principle,  as 
found  in  Vattel,  must  necessarily  vary,  according  to  the  subject 
matter  to  which  it  is  to  be  applied.  The  rule,  do  as  you  would  be 
done  by,  is  equally  a  principle  of  public  law  as  this,  that  you  may 
do  as  you  are  done  by,  and,  if  applied  without  restriction,  would 
step  in  between  the  criminal  and  judge,  and  justify  retaliation  in 
its  most  extensive  forms.  "Est  modus  in  rebus,  sunt  certi  denique 
fines,  ultra,  citraque  nequit  consistere  rectum  "  If  foreign  tonnage 
be  exacted,  the  nation  which  pays  it  may,  by  way  of  retortion, 
adopt  a  similar  regulation  in  regard  to  the  nation  which  receives 
it.  So  if  one  nation  prohibit  intercourse  from  her  ports  to  other 
nations,  such  other  nation  may  retort  the  measure  by  similar 
regulations  from  their  own  ports.  So,  likewise,  if  one  nation 
should  refuse  to  consume  the  corn  of  other  nations,  they  may 
retort  by  saying,  we  will  not  consume  your  cloth.  In  the  fore- 
going cases,  ea^h  party  exercises  a  perfect  right,  and  no  party  can 
complain  if  others  exercise  the  same  rights  towards  him  that  he 


266  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

exercises  in  regard  to  them,  and  this  is  in  no  way  inconsistent 
•with  that  moral  principle  which  is  the  basis  of  all  public  law.  In 
this  view  of  the  subject,  Now  Jersey  might  grant  similar  exclu- 
sive privileges,  upon  good  and  sufficient  consideration,  but  it  can- 
not extend  this  principle  so  far  as  to  punish  a  citizen  of  that  state, 
or  any  other  citizen,  for  exercising  a  franchise  granted  to  him  by 
that  state,  declared  valid  by  its  highest  judicial  authorities,  and 
sanctioned  by  the  decrees  and  judgments  of  all  its  courts,  which 
have  had  the  proper  cognizance  of  the  subject  matter.  Such  an 
extension  of  this  principle  has  no  foundation  in  reason,  and  is 
supported  by  no  precedent,  or  even  analogy,  in  that  public  law 
which  has  been  set  up  against  us. 

Suppose  the  state  of  New  York  should  grant  a  several  fishery, 
a  case  which  has  been  mentioned,  in  her  own  territory,  and  the 
grantee  should  vindicate  his  right,  by  action  in  its  court,  against 
a  citizen  of  this  state,  either  by  injunction  or  execution,  and  this 
state  should  pass  a  law  making  such  grantee  liable  in  New  Jer- 
sey, on  that  account,  for  all  the  losses  which  such  citizen  of  New 
Jersey  may  have  sustained  by  reason  of  his  having  been  so  pre- 
vented from  disturbing  such  grantee  in  the  enjoyme«t  of  his  fran- 
chise, so  declared  to  be  valid  and  lawful,  could  such  an  act  of 
our  legislature  possibly  be  justified  upon  that  principle  of  retor- 
tion, as  found  in  public  law?  If  so,  this  principle  would  destroy 
public  law  itself,  by  making  acts  done  in  every  state,  in  pursu- 
ance of  its  laws  and  judgments  of  its  courts,  examinable  and 
punishable  in  the  courts  of  every  other  state.  I  might  put  the 
case  under  the  same  circumstances  of  an  exclusive  right,  in  nature 
of  a  ferry.  Is  it  possible  to  suppose  that  a  statute  of  New  Jersey 
could  bo  supported  on  the  ground  of  retortion,  which  would  pun- 
ish in  New  Jersey  the  grantee  of  such  ferry  for  exercising  the 
right  of  his  franchise  against  a  Jerseyman,  as  well  as  against  his 
own  fellow  citizens?  Many  other  analagous  cases  might  bo  put, 
and  if  public  law  be  as  contended  for  on  the  other  side,  then  I 
can  see  no  reason  why,  upon  the  principle  of  retortion,  (that  is 
as  is  said,  in  all  cases,  to  do  as  you  are  done  by)  a  law  could  not 
be  supported  authorizing  any  citizen  of  New  Jersey,  from  whom 
a  debt  had  been  recovered  in  New  York,  to  recover  back  from 
his  creditor  the  whole  money  here,  and  that  too  with  double,  or 
even  triple,  costs. 

Suppose  the  state  of  New  York  should  imprudently  adopt  this 


NOVEMBER  TERM,  1822.  267 

Gibbons  v.  Livingston. 

same  principle  of  retortion,  and  authorize  a  recovery,  in  that  state, 
by  this  defendant  against  this  plaintiff  of  double  the  sum  that  may 
be  recovered  here,  with  double  costs,  where  would  all  this  end  ? 
Retortion  would  lead  to  retaliation,  and  retaliation  to  more  direct 
hostilities,  but  for  the  control  of  that  federal  constitution,  under 
which,  happily  for  the  peace  and  concord  of  these  states,  each 
one  is  firmly  placed,  and  for  the  execution  of  which,  and  the  pre- 
servation of  all  its  benefits,  every  court  within  the  Union  is  firmly 
bound  by  the  highest  obligation.  1  Federalist  27,  32,  33,  34,  40. 

III.  For  the  sake  of  the  argument,  which  I  by  no  means 
admit,  let  us  suppose  that  this  act  of  New  Jersey  could  be  justi- 
fied among  nations  wholly  independent  of  each  other,  upon  the 
principles  of  retortion  and  retaliation,  as  found  in  the  treatises  on 
public  law ;  yet  I  contend,  that  this  act  cannot  be  supported 
under  the  laws  and  constitution  of  the  United  States,  which,  on 
all  hands,  is  admitted  to  be  the  supreme  and  paramount  law  of 
the  land. 

Art.  4,  sec.  1,  of  the  Federal  Constitution  provides,  "  that  full 
faith  and  credit  shall  be  given,  in  each  state,  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  state,  and  that 
congress  mmy,  by  general  laws,  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings  shall  be  proved,  and  the 
effect  thereof." 

Art.  6,  of  the  same  constitution,  further  provides,  "  that  this 
constitution,  and  the  laws  of  the  United  States  made  in  pursu- 
ance thereof,  shall  be  the  supreme]&wof  the  land;  and  the  judges 
in  every  state  shall  be  bound  thereby,  any  thing  in  the  constitu- 
tion or  laws  of  any  state  to  the  contrary  notwithstanding."  And 
"that  the  judicial  officers,  both  of  the  United  States  and  the 
several  states,  shall  be  bound,  by  oath  or  affirmation,  to  support 
this  constitution." 

1  vol.  of  the  Laws  of  Congress  15,  passed  in  pursuance  of  the 
foregoing  article  of  the  constitution,  provides,  "that  such  records 
and  judicial  proceedings  shall  have  such  faith  and  credit  given  to 
them  in  every  court  within  the  United  States,  as  they  have  by 
law  or  usage  in  the  courts  of  the  state  from  whence  the  said 
records  ai'e,  or  shall  be,  taken." 

It  has  been  argued,  however,  by  the  adverse  counsel,  that  the 
above  provison  does  not  extend  to  the  effect  which  such  records 
and  judicial  proceedings  shall  have  in  other  states.  In  opposition 


268  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

to  this,  it  is  only  nccessar}'  to  observe,  that  it  has  been  solemnly 
decided,  as  well  in  this  court  as  in  the  Supreme  Court  of  the 
United  States,  that  under  the  foregoing  act  of  congress  the  effect 
of  a  judgment  shall  bo  in  every  state  the  same  as  in  the  state 
in  which  it  was  rendered.  Wheat.  Dig.  119.  Cranch  481,  483. 
3  Wheat.  Rep.  234. 

The  declaration  in  this  suit,  and  the  exemplified  acts  and 
judicial  proceedings  referred  to  therein,  and  shewn  in  evidence, 
prove  that  the  state  of  New  York,  in  pursuance  of  a  contract 
between  it  and  Messrs.  Livingston  and  Fulton,  and  their  assigns, 
made  to  them  a  grant  for  the  exclusive  use  of  steam-boats  on  all 
the  waters  within  its  territory  and  jurisdiction,  fora  limited  time, 
on  consideration  of  their  having  brought  such  navigation  into 
practical  use,  and  of  their  having  undertaken  to  keep  up,  for  pub- 
lic use,  a  certain  number  of  such  boats  on  the  North  River,  to 
run  between  the  cities  of  New  York  and  Albany.  That  Messrs. 
Livingston  and  Fulton  assigned  to  John  R.  Livingston,  the 
defendant,  in  the  year  1808,  a  portion  of  that  exclusive  right  in 
the  territory  of  New  York  for  the  purpose  of  running  steam- 
boats, amoung  other  places,  between  the  cities  of  New  York  and 
New  Brunswick.  That  after  Mr.  Livingston,  the  defendant,  had 
been  in  the  undisturbed  enjoyment  of  this  right  for  more  than  ten 
years,  he  was  interrupted  therein  by  the  plaintiff,  Mr.  Gibbons, 
by  his  running,  without  any  license,  his^  steam-boat,  the  Bellona, 
between  the  cities  of  New  Brunswick  and  New  York,  over 
waters  in  the  territory,  and  within  the  jurisdiction,  of  that  state. 
That  this  defendant  filed  his  bill  in  chancery,  in  the  state  of 
New  York,  against  Mr.  Gibbons,  complaining  of  such  interrup- 
tion, and  praying  relief;  and  that  such  court,  by  an  interlocutory 
order  or  decree,  granted  an  injunction  against  the  present  plain- 
tiff, Mr.  Gibbons,  whereby  it  appears,  that  he  was  restrained 
from  running  his  boat  between  the  cities  of  New  Brunswick  and 
New  York,  as  ho  before  had  done. 

The  declaration  further  shows  the  act  of  the  legislature  of  this 
state  of  February,  1820,  which  provides,  that  if  any  citizen  of 
New  Jersey  shall  hereafter  be  restrained  or  enjoined  by  any  order 
or  decree  of  the  Court  of  Chancery  of  New  York,  in  virtue,  or 
under  colour,  of  any  act  of  the  legislature  of  that  state,  from  navi- 
gating the  waters  between  the  ancient  shores  of  the  two  states, 
that,  in  such  case,  the  party  so  restrained  shall,  in  an  action  of . 


NOVEMBEE  TEEM,  1822.  269 

Gibbons  v.  Livingston. 

trespass,  recover  all  damages  sustained  thereby,  with  triple  costs, 
against  the  plaintiff  in  such  order  or  decree. 

It  is  perfectly  evident,  that  the  provisions  of  the  above  statute 
of  New  Jersey  would  give,  in  this  court,  an  effect  to  judicial 
proceedings  in  the  state  of  New  York  directly  and  diametrically 
opposite  to  the  effect  they  would  have  in  the  courts  of  the  state 
of  New  York,  from  whence  they  have  been  taken,  for  there  they 
would  be  a  complete  justification  in  a  suit  for  the  restraint  com- 
plained against,  whereas  here  they  are  made  the  very  basis  and 
foundation  of  the  action.  Thus  it  turns  out,  that  this  statute  of 
New  Jersey  comes  in  direct  collision  with  an  act  of  congress, 
made  in  pursuance  of  the  constitution  of  the  United  States,  and 
it  is  certainly  unnecessary  to  add,  that  the  latter  must  be  con- 
sidered as  the  paramount  law,  and  that  it  ought  to  be  the  inclina- 
tion, as  it  is  the  duty  of  the  court  to  protect  the  defendant  from 
the  penalties  of  an  act  which  is  not  only  at  variance  with  funda- 
mental principles,  but  expressly  repugnant  to  the  supreme  law 
of  the  land. 

Let  me,  however,  suppose  otherwise  for  a  moment,  and  that 
the  act  of  our  legislature  and  the  act  of  congress  are  in  perfect 
accordance.  This  act  is  highly  penal,  and  it  follows,  if  there 
be  any  dubiety  in  the  terms  made  use  of,  that  they  must  be 
taken  in  the  stricter  sense,  and  so  as  not  to  have  any  retroactive 
operation. 

The  terms  of  the  act  are,  "  if  any  citizen  of  the  state  of  New 
Jersey  shall  hereafter  be  enjoined  or  restrained  by  any  writ  of 
injunction  or  order  of  the  Court  of  Chancery  of  the  state  of 
New  York,"  &c.  Now  there  is  no  charge,  in  the  declaration, 
of  any  restraint  after  the  1st  of  April,  1820,  when  the  operation 
of  the  law  commenced,  nor  of  any  injunction  whatever,  except- 
ing the  one  which  was  sued  out  in  the  month  of  May,  in  the 
year  preceding  the  law  of  New  Jersey,  and  served  in  the  month  of 
March,  between  the  passage  of  the  law  and  the  time  when  it  went 
into  operation.  The  question  here  is,  whether  the  words  "shall 
hereafter",  in  our  act,  do  not  apply  to  the  whole  of  the  sentence  im- 
mediately following,  so  as  to  mean  only  a  restraint  in  virtue  of  some 
subsequent  injunction  or  order  of  the  chancery  of  New  York. 

I.  The  natural  sense  of  every  antecedent,  is  to  cover  the  whole 
of  the  subsequent  sentence,  unless  opposed  to  the  evident  mean- 
ing of  the  parties. 


270  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

2.  If  the  word  "hereafter"  does  not  apply  to  the  order  of  the 
court  in  New  York,  it  can  have  no  operation  whatever,  for  then 
the  whole  clause  would  have  precisely  the  same  meaning  if  the 
word  was  wholly  omitted.    This  is  contrary  to  the  plain  rule  of 
construction,  that  every  word,  if  possible,  must  have  its  natural 
effect.     Suppose  the  terms  of  the  act  had  been,  if  any  citizen 
of  the  stgte  of  New  Jersey  shall  "  hereafter"  be  restrained  of  his 
liberty,  by  any  writ  of  ca.  sa.  out  of  any  court  in  the  state  of 
New  York,  is  it  not  the  natural  sense,  that  to  make  a  plaintiff 
there,  liable  here,  that  the  writ  should  have  been  sued  out  after 
the  passage  of  the  law  ?  or  must  he,  as  is  contended  on  the  other 
side,  go  immediately  and  release  the  defendant,  and  so  extin- 
guish his  debt?  Such  a  course  could  not  be  required,  even  if  the 
words  "shall  hereafter"  had  been  omitted,  without  giving  the 
law  a  retroactive  operation  in  destruction  of  a  vested  right,  and 
in  hostility  with  natural  justice  and  every  principle  of  fair  and 
reasonable    construction,    but  the  words  "shall  hereafter'  evi- 
dently shew  that  such  could  not  have  been  the  intent  of  the 
legislature. 

3.  If  there  be  only  a  doubt  as  to  the  effect  which  these  words, 
"  shall  hereafter",  ough t  to  have  upon  the  construction  of  th  is  clause 
of  the  statute,  that  which  is  the  most  favourable  to  the  defendant 
ought  to  be  adopted,  inasmuch  as  the  law  is  highly  penal,  and, 
to  say  the  least  of  it,  of  a  novel  and  very  extraordinary  character. 

On  the  other  hand  it  has  been  contended,  that  this  law  ought 
to  have  the  most  favourable  construction  ;  that  it  is  remedial  and 
grew  out  of  the  necessity  of  the  case,  as  there  was  no  other  mode 
to  resist  the  encroachments  on  the  part  of  New  York,  which 
have  been  so  loudly  complained  of.  Has  it  been  shewn  how  this 
law  can  have  any  possible  tendency  to  settle  this  disputed  lino  ? 

Why  (under  our  federal  constitution,  which  declares,  art.  3, 
sec.  2,  that  the  judicial  power  shall  extend  to  controversies  be- 
tween two  or  more  states,  and  that  in  such  case  the  Supremo 
court  shall  have  original  jurisdiction)  may  not  the  state  of  New 
York  be  impleaded  in  that  court  by  the  state  of  New  Jersey,  and 
BO  bring  this  controversy  to  a  final  end?  This  only  legal  and 
constitutional  remedy  has  never  been  tried,  and  there  has  never 
been,  that  I  have  ever  heard  of,  any  legal  opinion  against  its  ef- 
ficacy. Why,  then,  talk  here  of  the  necessity  of  this  warfare 
against  an  individual,  an  innocent  individual,  acting  in  strict  con- 


NOVEMBER  TERM,  1822.  271 

•I          — • — ' — — — ______ ____ ___ _ _______^___ 

Gibbons  v.  Livingston. 

formity  to  the  laws  of  the  state  in  which  he  resides?  Why,  then, 
talk  here  of  retortion  and  retaliation,  to  the  ruin  of  individuals, 
the  interruption  of  a  great  public  accommodation,  and  all  the 
numerous  evils  necessarily  consequent,  when  the  doors  are  open 
to  courts  fully  competent?  If  this  be  proper,  in  regard  to  the 
state,  why  ought  not  individuals,  out  of  the  same  plea  of  neces- 
sity, instead  of  vindicating  their  rights  in  courts,  resort  to  the  like 
measures  of  retortion  and  retaliation?  I  am  sorry  that  this  plea 
of  necessity  was  ever  set  up  as  an  argument  in  favour  of  a  c6n- 
struction  which  cannot  be  maintained  on  ordinary  rules. 

So,  also,  in  regard  to  the  complaint  of  an  encroachment  on 
jurisdiction,  this  plea  of  necessity  has  as  little  to  do  as  in  regard 
to  the  question  of  boundary.  If  the  claim  be  well  founded,  it 
stamps  nullity  on  the  next  section  of  this  act,  for  there  our  own 
legislature  has  exercised  jurisdiction  over  its  own  territory  in. 
these  intermediate  waters,  by  prohibiting  a  licensed  commerce 
between  this  state  and  that  of  New  York,  notwithstanding  the 
provision  in  art.  1,  sec.  8,  of  the  constitution,  "  that  congress  shall 
have  power  to  regulate  commerce  among  the  several  states,"  and 
this  without  any  such  reason  as  has  been  urged  in  favour  of  the 
grant  of  the  state  of  New  York  to  Messrs.  Livingston  and  Ful- 
ton for  this  exclusive  right,  on  the  ground  of  the  property  which 
Mr.  Fulton  bad  in  his  own  combination,  and  on  account  of  which 
his  name  will  live  through  all  posterity.  Now,  can  the  state  of 
New  Jersey  lawfully  exercise  this  very  jurisdiction  over  her 
waters,  and  deny  the  same  right  to  the  state  of  New  York  in 
her  waters?  Whether  New  York  could  constitutionally  make 
that  grant  in  favour  of  a  meritorious  citizen  of  the  United  States, 
(in  consideration  of  the  introduction,  by  him,  into  practical  use 
of  a  navigation  unknown  in  all  former  times,  and  of  which  the 
benefits  are  incalculable)  is  a  constitutional  question,  now  regu- 
larly depending  before  the  Supreme  Court  of  Washington,  on 
appeal  from  the  court  of  the  last  resort  in  the  state  of  New 
York.  And  why  not  wait  the  event  with  patience?  a  virtue 
necessary  for  every  suitor,  as  well  as  the  plaintiff  in  this  cause. 
What  is  there  in  his  case  which  should  require  that  all  ordinary 
rules  should  be  lost  sight  of,  and  the  plea  of  necessity  set  up,  of 
which  the  greatest  characteristic  is,  that  it  knows  no  rule. 

I  conclude  by  observing,  that  this  suit  is  brought  for  a  sup- 
posed transgression  in  the  territory  of  the  state  of  New  York ; 


272  NEW  JERSEY  SUPEEME  COUKT. 

Gibbons  v.  Livingston. 

that  the  basis  and  entire  foundation  of  the  suit  is  a  transaction 
in  the  state  of  New  York,  in  execution  of  a  lawful  judgment  or 
decree  of  the  Court  of  Chancery  there ;  that  the  statute  of  this 
state,  and  constitution  of  the  United  States,  and  the  act  of  con- 
gress made  in  pursuance  thereof,  are  in  direct  collision,  inasmuch 
as  the  effect  of  such  judicial  proceedings  are,  by  the  law  of  New 
Jersey,  made  diametrically  opposite  to  the  effect  such  proceed- 
ings would  have  in  the  state  of  New  York,  from  whence  they 
have  been  taken ;  that  the  apparent  unconstitutionally  of  our  law 
could  not  be  justified  on  any  ground  of  retortion  and  retaliation; 
that  the  courts  of  the  United  States  had  full  power  to  hear  and 
determine  every  matter  in  controversy  between  this  and  our 
neighbouring  state;  that,  independently  of  the  matters  just  men- 
tioned, the  fair  construction  of  our  statute  could  not  comprehend 
the  case  of  an  injunction  issued  before  the  statute  and  the  neces- 
sary consequences  thereof;  that  this  statute  is  highly  penal  in 
its  nature,  and  ought  to  receive  the  most  favourable  construc- 
tion in  behalf  of  the  defendant;  and  that  there  is  nothing  in  the 
supposed  necessity  of  the  case  to  alter  the  ordinary  plain  rules 
of  construction  thereto,  and,  therefore,  I  now  pray  that  the 
judgment  of  the  court  may  be  entered  for  the  defendant. 

KIRKPATRICK  C.  J.  This  is  an  action  on  the  case  brought  by 
the  plaintiff  to  recover  damages  against  the  defendant  for  enjoin- 
ing and  restraining  him  from  navigating,  with  bis  steam-boat,  the 
waters  between  the  state  of  New  Jersey  and  the  state  of  New 
York.  It  is  founded  on  the  third  section  of  the  act  entitled,  "A 
supplement  to  the  act  entitled  an  act  to  preserve  and  support  the 
jurisdiction  of  this  state,"  passed  February  25,  1820. 

This  section  is  in  these  words,  that  is  to  say,  "If  any  citizen 
of  the  state  of  New  Jersey  shall  hereafter  be  enjoined  or  re- 
strained by  any  writ  of  injunction,  or  order  of  the  Court  of  Chan- 
cery of  the  state  of  New  York,  by  virtue,  or  under  colour,  of  any 
act  of  the  legislature  of  that  state,  from  navigating,  with  any  boat 
or  vessel  moved  by  steam  or  fire,  belonging  or  to  belong,  in  part 
or  in  whole,  to  him,  the  waters  between  the  ancient  shores  of  the 
states  of  Now  Jersey  and  New  York,  the  plaintiff  or  plaintiffs  in 
such  writ  or  order  shall  be  liable  to  the  person  or  persons 
aggrieved  for  all  damages,  expenses,  and  charges  occasioned  there- 
by, to  be  recovered,  with  triple  costs,  in  an  action  of  trespass, 


NOVEMBER  TERM,  1822.  273 

Gibbons  v.  Livingston. 

or  trespass  on  the  case,  in  any  court  having  cognizance  thereof," 
&c. 

This  cause  was  brought  to  trial  at  the  Middlesex  circuit,  in 
December  last,  when  the  plaintiff  gave  in  evidence  the  acts  of 
the  legislature  of  the  state  of  New  York  granting  and  securing 
to  the  persons  therein  named  the  exclusive  privilege  of  navigat- 
ing the  waters  of  that  state  by  steam ;  the  proceedings  of  the 
Court  of  Chancery  there  upon  a  bill  filed  by  the  defendant 
against  the  plaintiff,  complaining  of  an  infringement  of  that 
exclusive  privilege;  a  writ  of  injunction  sued  out  by  the  order 
of  that  court,  commanding  the  plaintiff  to  desist  and  refrain 
from  navigating,  with  his  steam-boat,  the  waters  in  the  bay  of 
New  York  and  in  the  Hudson  river,  between  Staten  Island  and  Pow- 
les  Hook,  and,  afterwards,  by  another  order,  limited  to  the  waters 
of  the  bay  of  New  York  only,  under  the  penalty  of  ten  thousand 
dollars,  until  the  further  order  of  that  court  to  the  contrary; 
and  the  service  of  that  writ  on  the  plaintiff  some  time  in  June, 
1819,  at  Staten  Island,  in  the  state  of  New  York.  He  also  gave 
in  evidence  some  other  things,  rather  of  a  formal  nature,  and 
not  here  necessary  to  be  mentioned.  To  this  evidence  the 
defendant  demurred,  and  that  demurrer  is  now  subjected  to  the 
consideration  of  this  court. 

To  support  this  demurrer,  the  defendant  takes  these  three 
grounds : — 1.  That  the  enjoining  and  restraining,  proved  on  the 
trial,  was  by  an  injunction  sued  out  and  served  before  the  pass- 
ing of  this  act;  that  the  defendant  has  done  no  act  or  thing, 
since  that  time,  to  enforce  that  injunction,  or  carry  it  into  effect, 
or  in  any  way  to  enjoin  or  restrain  the  plaintiff  thereby ;  and 
that,  therefore,  the  plaintiff  does  not  bring  himself  within  the 
•words  of  the  act,  which  says,  "if  any  citizen  of  New  Jersey 
shall  hereafter  be  enjoined  or  restrained  by  any  writ,"  &c. 

2.  That  the  enjoining  and  restraining  proved  on  the  trial,  even 
though  the  injunction  had  been  sued  out  and  served  after  the  act 
went  into  operation,  would  not  be  within  the  description  and  pro- 
hibition contained  in  it,  because  that  injunction  was  not  by  virtue, 
or  under  colour,  of  any  act  of  the  legislature  of  New  York,  but 
according  to  the  ordinary  course  of  proceeding  of  a  court  of 
chancery  in  the  exercise  of  its  ancient  and  essential  jurisdiction, 
and  so  is  not  within  the  words  of  the  act,  "an  injunction  by  vir- 
tue, or  under  colour,  of  any  act  of  the  legislature  of  New  York" 

VOL.  I.  8 


274  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

3.  That  the  defendant  being  a  citizen  of  the  state  of  New 
York,  and  acting  within  that  state  and  under  its  judicial  author- 
ity, cannot  be  called  in  question,  or  subjected  to  damages,  in 
another  state  for  such  act. 

As  to  the  first  of  these  grounds.  It  is  to  be  observed,  that  tho 
operation  of  a  writ  of  injunction  is  not  confined  to  the  time  of 
its  service,  nor  to  any  limited  time  afterwards,  but  continues  until 
it  is  regularly  dissolved  by  the  authority  under  which  it  is  issued. 
In  this  case,  the  plaintiff  could  not,  at  any  time  within  the  period 
complained  of,  navigate  these  waters,  with  his  steam-boat,  with- 
out subjecting  himself  to  an  attachment  for  contempt;  without 
subjecting  himself  to  the  imprisonment  of  his  person  and  to  the 
payment  of  the  penalty  expressed  in  the  writ.  Can  it  be  said, 
then,  that  he  was  not  restrained  during  that  whole  period ;  that 
he  was  not  restrained,  as  well  after  the  act  went  into  operation 
as  before?  It  was  not  necessary  that  the  restraint  should  com- 
mence after  the  act  went  into  operation,  in  order  to  bring  it  within 
the  words;  if  it  continued  afterwards,  if  the  plaintiff  was  actually 
restrained  afterwards,  he  is,  in  my  view  of  the  case,  as  clearly 
within  the  words  of  it  as  if  the  injunction  had  been  sued  out  and 
served  afterwards.  The  defendant  was  the  party  restraining ;  the 
injunction  was  in  his  hands ;  he  kept  it  in  operation  ;  he  was  con- 
tinually acting;  he  was  restraining  everyday;  and  if  he  would 
have  avoided  the  penalty  of  this  act  he  must  have  removed  the 
restraint,  he  must  have  dissolved  the  injunction. 

As  to  the  second  ground.  It  must  be  admitted,  that  in  order 
to  entitle  a  citizen  of  New  Jersey  to  an  action  under  this  section, 
the  enjoining  and  restraining,  spoken  of,  must  be  by  a  writ  of 
injunction,  or  an  order,  of  the  Court  of  Chancery  of  the  state  of 
New  York  by  virtue,  or  under  colour,  of  some  act  of  the  legislature 
of  that  state;  and  it  must  be  admitted,  also,  that  the  injunction 
in  this  case  was  not  specially  directed  by  any  such  act,  but  that 
it  was  sued  out  according  to  the  usual  course  of  the  court  in  tho 
exercise  of  its  ancient  and  essential  jurisdiction.  But  though 
this  be  so,  yet  it  may  be  said,  I  think,  that  it  is  by  virtue,  or  under 
.dolour,  of  these  acts,  or  some  one  of  them.  They  do  not,  it  is 
true,  grant  a  special  power  to  issue  an  injunction  upon  the  in- 
ifriBgement  of  this  exclusive  privilege;  the  court,  from  time  im- 
memorial, had  that  power  in  all  cases  of  that  kind,  and,  there- 
fore, «tood  in  no  need  of  such  special  grant  in  this  particular  one, 


NOVEMBER  TERM,  1822.  275 

Gibbons  v.  Livingston. 

but  they  do  create  the  right  upon  which  that  power  is  exercised ; 
it  is  by  virtue  of,  or  upon  the  strength  of  that  right,  thus  created 
by  these  acts,  that  the  defendant  comes  into  that  court  to  demand 
this  writ ;  and  it  is  by  virtue  of  that  right,  and  that  alone,  that 
the  chancellor  could  grant  it.  And  it  is  beyond  all  controversy, 
from  the  whole  scope  of  the  act,  that  it  was  in  this  light  the 
legislature  viewed  it.  They  meant  to  prohibit  totally  the  taking 
out  of  an  injunction  to  secure  this  exclusive  privilege  against  us. 
The  injunction  may,  therefore,  I  think,  fairly  be  said  to  be  by 
virtue,  or  upon  the  strength,  of  these  acts,  or  some  one  of  them. 
They  lie  at  the  bottom  of  the  whole  proceeding. 

The  third  ground  is,  that  a  citizen  of  one  state,  acting  within 
that  state,  and  under  its  laws  and  judicial  authority,  cannot  be 
called  in  question  for  such  act  in  any  other  state. 

This  position  would  appear  to  me  to  be  well  founded  in  the 
constitution  of  the  United  States.  The  constitution  declares, 
that  full  faith  and  credit  shall  be  given,  in  each  state,  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  state.  These 
words,  full  faith  and  credit,  in  this  clause  of  the  constitution,  so 
far  as  they  applj'  to  judicial  proceedings,  have  been  construed 
in  this  court,  as  well  as  in  the  Supreme  Court  of  the  United 
States,  to  imply  full  force  and  effect ;  that  is,  such  force  and  effect 
as  they  have  by  law  or  usage  in  the  state  from  whence  they  are 
taken. 

.Now,  if  this  action  had  been  brought  in  the  state  of  New  York, 
as  well  it  might,  and  these  judicial  proceedings  in  the  Court  of 
Chancery  had  been  given  in  evidence  there,  as  they  have  been 
here,  and  the  defendant  had  demurred  to  that  evidence,  could 
there  be  a  doubt  but  that  the  demurrer  must  ha,ve  been  adjudged 
to  be  conclusive  against  the  plaintiff?  It  must  have  been  so,  even 
though  erroneous,  upon  the  principle,  that  the  judgment  of  a 
court  having  jurisdiction  of  the  subject  matter  must  always  be 
conclusive,  until  reversed  upon  error,  or  corrected  upon  appeal. 
And  if  so,  how  shall  we  avoid  giving  them  the  same  force  and 
effect  here?  In  ordinary  cases,  it  would  seem  that  there  could 
be  no  doubt  on  this  subject.  If  a  citizen  of  New  Jersey  should 
be  sued  in  New  York  upon  an  account  for  goods  sold,  or  upon  a 
bond,  or  promissory  note,  or  other  matter  of  debt  arising  here, 
and  should  have  judgment  against  him  and  execution  upon  his 
goods,  and  then  should  bring  an  action  here  to  recover  damages 


276  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

for  the  taking  and  detaining  such  goods,  would  any  man  say,  that 
the  judicial  proceedings  against  him  in  the  state  of  New  York 
•would  not  be  conclusive  against  him  here,  would  any  man  hesi- 
tate to  say  so,  even  if  the  state  of  New  Jersey  should,  before 
that  time,  have  passed  an  act  giving  an  action  to  recover  dam- 
ages in  such  cases?  No  man,  it  is  thought,  would  hesitate  to 
say  so,  because  such  act  would  be  manifestly  not  only  contrary  to 
the  spirit  of  the  federal  compact,  but  also  to  the  very  words  of  it, 
which  have  been  already  cited.  What,  then,  is  there  in  the  case 
before  us  to  vary  it  from  the  common  case  ?  If  it  should  be  said, 
that  the  laws  of  the  state  of  New  York  granting  this  exclusive 
privilege,  and  excluding  the  steam-boats  of  other  states  from  their 
waters,  are  unconstitutional  laws;  or  if  it  should  be  said,  as  the 
commissioners  for  settling  with  New  York  the  eastern  boundary 
of  the  state  have  said,  that,  independently  of  the  constitution,  all 
navigable  rivers  and  arms  of  the  sea  are,  in  a  certain  sense,  com- 
mon to  all  the  citizens  of  the  United  States,  for  that  all  have  a 
common  right  to  their  navigation,  and  a  common  right  to  sail 
through  their  waters,  even  though  they  cover  the  land  of  another 
state ;  or  if  it  should  be  said,  that  the  law  of  the  state  of  New 
York  extending  the  boundary  of  that  state,  and  asserting  its  ex- 
clusive jurisdiction  up  to  high  water  mark  on  our  shores,  and  so 
carrying  their  exclusive  privilege  and  jurisdiction  into  our  terri- 
tory, is  wholly  without  colour  of  right ;  and  that,  therefore,  the 
judicial  proceedings  of  the  Court  of  Chancery  of  that  state  can 
never  be  admitted  either  to  establish  and  give  effect  to  such 
unconstitutional  laws,  or  to  impugn  and  take  away  such  common 
right,  and  least  of  all,  to  sanctify  such  encroachments  upon  our 
territory,  and  such  usurpation  of  our  sovereign  authority.  And 
if  it  should  be  admitted,  that  all  these  things  are  so,  (concerning 
which,  however,  I  give  no  opinion  at  present)  yet  must  it  not  be 
admitted,  also,  that  the  courts  of  that  state  have  lawful  jurisdic- 
tion of  all  questions  arising  on  the  laws  of  that  state,  subject  only 
to  an  appeal  to  the  courts  of  the  United  States;  and  that  unless 
such  appeal  be  actually  made,  their  judgments  must  be  final  and 
conclusive,  and  have  the  same  faith  and  credit,  that  is,  the  same 
force  and  effect  here,  as  they  would  have  had  there  ? 

Whether  the  state  of  New  York  had  or  had  not  a  right  to 
grant  this  exclusive  privilege  ;  or  in  any  way  to  regulate  or  re- 
strain her  commerce  with  other  states;  or  to  interdict  their  inter- 


NOVEMBER  TERM,  1822.  277 

Gibbons  v.  Livingston. 

course  by  water  in  any  manner  they  might  think  fit;  are  ques- 
tions arising  under  the  constitution  of  the  United  States;  for  inde- 
pendent of  that  constitution  there  ca.n  be  no  doubt  but  they  had 
such  right;  whether  the  enforcement  of  that  exclusive  privilege 
against  the  plaintiff,  who  is  a  citizen  of  New  Jersey,  is  a  violation 
of  any  common  right  which  he  might  have  had,  independently  of 
the  constitution,  to  navigate  the  waters  of  that  state,  is  a  question 
arising  between  citizens  of  different  states ;  so,  also,  of  questions  aris- 
ing upon  their  law  of  boundary  and  jurisdiction,  for  every  private 
controversy  growing  out  of  it  must  necessarily  be,  as  it  is  here,  be- 
tween citizens  of  different  states.  So  that  in  all  the  cases  put,  and 
in  all  the  cases  that  can  be  put,  so  far  as  my  imagination  can 
carry  me,  the  courts  of  New  York  have,  upon  these  laws,  unques- 
tionable jurisdiction,  subject  to  an  appeal  to  the  courts  of  the 
United  States;  and  if  so,  what  reason  can  be  offered  that  their 
judicial  proceedings  should  not  have  full  force  and  effect  here  as 
well  as  there?  The  constitution  of  the  United  States  expressly 
provides,  that  the  judicial  power  shall  extend  to  all  controversies 
arising  under  the  constitution  and  laws  of  the  United  States;  all 
controversies  between  two  or  more  states,  and  between  citizens 
of  different  states,  or  of  the  same  state,  claiming  rights  under 
different  states;  thus  making  provision  and  establishing  tribunals 
for  the  determination  of  all  controversies  of  this  kind,  and,  in- 
deed, of  every  kind  which  can  arise  between  the  different  states, 
or  the  citizens  thereof,  and  especially  those  which  arise  upon  the 
constitution  itself.  Can  a  state,  then,  which  has  agreed  to  this 
compact,  and  which  has  complete  remedy  in  the  tribunals  of 
justice  thereby  established,  resort  to  measures  of  force?  can  it, 
for  every  supposed  injury,  become  its  own  judge,  and  retort  such 
injury  upon  the  supposed  aggressor,  or  make  recaptions  or  re- 
prisals by  way  of  indemnification?  What  sort  of  a  federal  com- 
pact would  this  be,  and  how  long  could  it  possibly  endure? 

To  me  it  would  appear,  therefore,  that  the  only  constitutional 
mode  of  obtaining  redress  against  these  unconstitutional  laws 
and  judicial  proceedings  of  the  state  of  New  York,  and  the  acts 
done  under  them,  if  indeed  they  are  unconstitutional,  would  be 
by  appeal  to  the  courts  of  the  United  States,  where  all  questions 
of  this  kind  may  be  settled  by  intelligent  and  disinterested 
judges,  and  all  ground  of  controversy  between  different  states, 
and  the  citizens  thereof,  be  removed  and  taken  away. 


278  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

But  notwithstanding  the  subject  presents  itself  to  my  view  in 
this  light,  yet  inasmuch  as  it  is  understood  that  the  chancellor, 
who  is  the  judge  in  a  co-ordinate  court,  over  which  this  has  no 
control,  and  to  whom  the  execution  of  this  act  is  specially  and 
principally  committed,  has  so  far  adjudged  it  to  be  a  constitu- 
tional act  as  to  carry  it  into  effect  in  sundry  instances  and  to 
great  extent;  and  inasmuch  as  it  highly  concerns  the  dignity  of 
the  republic,  as  well  as  the  rights  of  private  citizens,  that  the 
administration  of  justice  should  be  uniform,  and  that  the  con- 
struction of  the  laws  should  be  the  same  in  all  the  courts,  I  have 
felt  myself  constrained  to  doubt  the  correctness  of  my  own  judg- 
ment, and  to  yield  to  that  high  authority. 

I  am  willing,  therefore,  upon  this  ground  to  say,  that  this 
demurrer  must  be  overruled,  and  that  judgment  must  be  en- 
tered for  the  plaintiff. 

ROSSELL  J.  The  constitutionality  of  the  law  of  this  state  has 
been  brought  in  question  by  the  defendant,  and  this  court,  on 
that  ground,  strongly  urged  to  stay  its  operation.  This  is  always 
a  question  of  the  greatest  delicacy  and  importance,  bringing,  per- 
haps, into  mischievous  collision  the  organized  authorities  of  our 
country.  The  representatives  of  a  free  people,  elected  to  make 
laws  for  the  regulation  of  their  own  conduct,  as  well  as  that  of 
their  constituents,  know  no  limits  to  their  authority  but  their  own 
consciences  and  the  constitutions  of  the  United  States  and  of 
New  Jersey,  and  a  law  passed  by  them  must  be  in  direct  viola- 
tion of  one  or  both  these  sacred  charters  ere  a  court  would  be 
authorized  to  declare  it  void.  Although  it  might  be  inclined  to 
the  opinion,  that  it  was  an  infringement  of  the  spirit  of  those 
instruments,  this  would  be  setting  up  the  understandings  of  a  few 
to  that  of  the  many,  in  a  doubtful  question,  for  doubtful  it  might 
well  be  considered  when  the  collected  wisdom  of  a  whole  coun- 
try had,  after  due  deliberation,  passed  upon  it,  and  declared,  by 
a  solemn  public  act,  that  it  was  within  the  limits  of  their  powers; 
aini  a  court  might  with  propriety  be  accused  of  arrogantly  as- 
suming to  themselves  a  superiority  of  intelligence  and  patriotism 
in  setting  up  their  own  opinions  in  opposition  to  it,  and  thus 
defeat,  perhaps,  the  operation  of  a  beneficial  public  law.  If  we 
might  be  permitted  to  suppose  a  legislative  body  so  regardless 
of  their  duty,  their  oaths,  and  the  fundamental  charters  of  their 


NOVEMBER  TERM,  1822.  279 

Gibbons  v.  Livingston. 

country  us  to  wantonly  violate  them,  there  are  but  few  courts,  I 
trust,  that  would  lend  their  aid  to  support  a  usurpation  of  power  so 
unjust  in  itself,  and  so  ruinous  to  our  best  interests.  The  subject 
matter  of  this  law  has  been  for  many  years,  from  time  to  time  before 
the  legislators  of  this  state,  repeatedly  discussed  and  acted  upon, 
after  due  deliberation,  and  is  not  of  a  description  that  would  at  all 
justify  this  court  to  stay  its  execution.  It  has,  in  principle  received 
the  sanction  of  successive  legislative  bodies,  composed  of  different 
members;  has  been  put  in  execution  by  our  Court  of  Chancery,  and 
this  Court  is  bound,  I  conceive,  to  execute  it  on  all  proper  occasions. 
But  it  is  urged,  that  it  is  a  direct  violation  of  the  constitution  of 
the  United  States,  as  that  declares,  "that  full  faith  and  credit  shall 
be  given,  in  each  state,  to  the  public  acts  and  judicial  proceedings 
of  every  other  state ;"  and  that  the  defendant  is  now  prosecuted  in 
this  court  for  putting  in  force,  in  New  York,  against  the  plaintiff, 
&  public  act  of  that  state.  But  this  clause  of  the  constitution  has 
been  grossly  misunderstood,  not  only  in  this,  but  in  other  states, 
if  it  compels  us  to  submit  our  rights,  our  persons,  nay  the  sover- 
eignty of  our  states,  to  the  unjust  usurpation  of  a  foreign  legisla- 
ture, who  might  be  induced  topassapublic  act  to  their  destruction. 
An  officer  of  New  York,  under  colour  of  a  law  of  that  state,  has 
served  compulsory  process,  on  a  citizen  claiming  the  protection 
of  this  state,  on  our  own  shores.  Was  New  Jersey  to  submit  to 
this  violation,  under  a  plea,  that  full  faith  and  credit  was  to  be 
given  to  a  public  act  of  New  York  ?  I  presume  this  will  not  be 
pretended.  Nor  will  it  be  denied,  that  our  legislature  (when,  in 
1807,  they  passed  an  act,  called  the  mother  act,  to  preserve  the 
jurisdiction  of  this  state,  and  making  it  highly  penal  to  serve  such 
process)  were  fully  justified  in  so  doing  in  the  opinion  of  every 
Jerseyman.  So  when  New  York,  in  effect,  claimed  the  exclusive 
right  and  jurisdiction  to  all  the  waters  of  New  York  bay  and  Hud- 
son river.  The  legislature  of  New  Jersey,  in  1811,  by  another  act 
of  that  date,  declared, "  that  whereas  the  state  of  New  York  does 
unjustly  claim  an  exclusive  jurisdiction  over  all  the  waters  lying 
between  the  shores  of  the  two  states;  and  whereas  the  citizens 
of  Now  Jersey  have  a  full  and  equal  right  to  navigate  vessels  or 
boats  on  all  the  waters  lying  as  aforesaid,  &c.  therefore,  if  any 
citizen  of  this  state  should  have  his  boat,  moved  by  fire  or  steam, 
seized  on  those  waters,  under  colour  of  any  law  of  the  state  of 
New  York,  the  party  so  injured  might  seize  on  any  steam-boat 


280  NE\V  JEESEY  SUPEEME  COUET. 

Gibbons  v.  Livingston. 

belonging  to  a  citizen  of  New  York,  lying  and  being  in  any  river, 
creek,  or  bay,  the  whole  waters  whereof  are  within  the  terri- 
torial jurisdiction  of  New  Jersey,  exclusive  of  New  York,  which 
boat  should  be  forfeited,  unless,"  &c. 

In  1813,  in  consequence  of  another  law  of  New  York,  an  act 
was  passed  in  New  Jersey  more  effectually  to  enforce  that  of 
1811.  In  1818,  a  supplement  to  the  mother  act  of  1807  was  passed, 
making  it  the  duty  of,  and  offering  a  reward  to,  the  citizens  of 
this  state  to  apprehend  all  offenders  against  the  first  recited  act. 
In  all  the  foregoing,  we  see  the  labours  of  our  legislature  alto- 
gether on  the  defensive,  following  from  time  to  time,  and  step  by 
step,  the  previous  laws  and  proceedings  of  New  York,  in  defence 
of  the  rights  of  New  Jersey,  from  what  we  deem  the  unjust  pre- 
tensions and  encroachments  of  New  York;  and,  until  these 
conflicting  claims  are  decided  against  us  by  a  competent  judicial 
tribunal,  it  would  bo  a  dereliction  of  an  imperious  duty  should 
we  abandon  them.  It  is  true,  that  by  the  law  of  1807,  the  exclu- 
sive jurisdiction  of  New  Jersey  is  confined  to  the  middle  of  the 
Hudson ;  but  that  law  by  no  means  gives  up  the  right  of  navi- 
gation on  all  the  waters  leading  to  and  from  the  sea  that  it  may 
be  necessary  to  pass  and  repass  in  order  to  the  full  and  perfect 
enjoyment  of  a  privilege  so  essential  to  our  interests  and  happi- 
ness. This  right  we  claim  by  the  law  of  nature  and  of  nations, 
as  well  as  by  grant  from  the  duke  of  York  to  the  proprietors  of 
East  Jersey,  in  1682,  "of  the  free  use  of  all  bays,  rivers,  and 
waters  leading  unto,  or  lying  between,  New  York,  &c.  and  East 
Jersey,  for  navigation,  free  trade,  fishing,  or  otherwise. 

The  law,  on  the  third  section  of  which  this  action  has  been 
brought,  was  in  force  from  the  1st  of  April,  1820,  and  enacts, 
"that  if  any  citizen  of  New  Jersey  shall  hereafter  be  enjoined 
or  restrained  by  any  writ  of  injunction,  or  order,  of  the  Court  of 
Chancery  of  New  York,  by  virtue,  or  under  colour  of  any  act  of 
the  legislature  of  that  state,  from  navigating,  with  any  boat  or 
vessel  moved  by  fire  or  steam,  or  fire,  belonging  to  him,  the 
waters  between  the  ancient  shores  of  New  York  and  New  Jer- 
sey, the  plaintiff  in  such  writ  or  order  shall  bo  liable  to  pay  all 
damages  sustained  by  the  person  aggrieved,  with  triple  costs," 
Ac.  This  act,  being  in  some  degree  penal  in  its  nature,  should 
be  strictly  construed,  and  it  is  incumbent  on  the  plaintiff  to 
bring  himself  within  its  express  provisions. 


NOVEMBER  TERM,  1822.  281 

Gibbons  v.  Livingston. 

On  the  posted,  it  is  returned,  as  proved  by  the  plaintiff,  "  that  in 
March,  1820,  his  steam-boat,  the  Bellona,  was  fitted  out  to  run 
from  New  Brunswick  to  the  port  of  New  York,  through  and 
over  the  waters  between  the  ancient  shores  of  New  Jersey  and 
New  York,  for  the  transportation  of  freight  and  passengers,  and 
that  he  kept  her  so  fitted  from  the  8th  of  May  until  the  5th  of 
June,  1820;  that  from  the  30th  of  March  to  the  5th  of  April  she 
was  employed  carrying  passengers  from  New  Brunswick  to  the 
Nautilus,  when  the  captain  of  the  latter  refused  to  receive  them, 
&c.;  that  from  the  5th  of  April  to  the  25th  of  June  she  was  laid 
up,  and  not  used  ;  that  on  the  25th  of  April  she  began  to  run  to 
the  steam-boat  Nautilus,  at  Staten  Island,  carrying  passengers 
for  New  York ;  but  that  the  intervening  time,  between  the  8th 
of  May,  and  the  5th  of  June,  1820,  the  plaintiff  was  restrained, 
by  force  of  the  said  injunction  of  the  defendant,  from  running 
his  steam-boat,  the  Bellona,  into  the  port  of  New  York,  or  any 
part  of  the  bay  of  New  York,  although  during  that  period  he 
intended  to  pass  with  said  boat  from  New  Brunswick  to  New 
York,  over  the  bay  of  New  York,  lying  between  the  ancient 
shores  of  New  York  and  New  Jersey,  if  he  had  not  been  re- 
strained by  the  injunction  aforesaid."  By  the  above  proof  it 
appears,  that  the  plaintiff  complains,  that  from  the  8th  of  May 
to  the  5th  of  June,  1820,  he  was  restrained,  by  an  injunction 
obtained  by  the  defendant  from  the  chancellor  of  the  state  of 
New  York,  from  running  the  Bellona  from  New  Brunswick  to 
the  port  of  New  York,  over  the  waters  lying  between  the  ancient 
shores  of  the  two  states,  for  which  he  claims  damages. 

When  the  legislature  of  New  Jersey  passed  the  law  of  1820, 
for  the  security  of  our  citizens  navigating  the  bay  of  New  York 
and  the  waters  between  the  ancient  shores  of  the  two  states,  they 
did  not  intend  any  interference  with  the  right  of  the  state  of 
New  York  to  interdict  an  entrance  into  her  own  ports,  unless  on 
such  terms  and  in  such  manner  as  she  by  law  had  prescribed. 
New  Jersey  herself  had  so  often  exercised  a  similar  power,  that 
she  could  not,  with  a  shadow  of  propriety,  dispute  that  power 
merely  because  it  was  exercised  by  a  sister  state,  and  that  too 
after  her  own  example.  Nor  have  the  legislature  so,  in  terms, 
expressed  themselves:  nor  could  they,  for  a  moment,  doubt  the 
right  of  New  York  to  grant  to  whom  she  will  the  exclusive  right 
of  entering  her  own  ports,  in  the  manner  prescribed  for  the  ad- 


282  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

vanceraent  of  a  public  good.  If  this  right  is  denied  to  New  York, 
in  vain  may  New  Jersey  search  for  that  so  repeatedly  exercised 
by  herself,  both  alike  possessed  of  all  the  inherent  rights  of  sov- 
ereignty, not  yielded  but  in  the  manner  set  forth  in  the  constitu- 
tion of  the  United  States :  neither  presumes  to  assume  a  power 
over  the  other.  Whilst  contending  about  rights,  each  believing 
justly  their  own,  they  claim  no  superiority,  nor  acknowledge 
themselves  inferior  sisters  of  a  great  and  happy  confederation. 
Interest,  duty,  and  good  faith,  in  the  most  imperative  terms,  for- 
bid it.  If  the  plaintiff  had  confined  himself,  for  the  purposes  of 
navigation,  to  the  waters  claimed  by  New  York,  there  is  no  pre- 
tence that  he  would  have  been  disturbed.  Nay,  it  was  stated  on 
the  argument,  and  not  denied,  that  he  run  the  Bellona  to  Powles 
Hook  without  interruption.  But  he  expressly  declares  his  pur- 
pose was  to  enter  the  port  of  New  York,  claiming  a  privilege  by 
virtue  of  a  law  of  this  state,  which  was  denied  to  the  citizens  of 
that.  The  gist  of  his  complaint,  and  on  which  only  he  founds  his 
claims  to  damages,  arises  altogether  from  his  being  restrained 
from  carrying  freight  and  passengers,  in  the  Bellona,  to  and  from 
that  port.  He,  indeed,  also  states,  that  he  was  restrained  from 
passing  over  the  waters  lying  between  the  two  states,  but  for 
what  purpose  did  he  desire  this  passage?  Solely  that  his  great  ob- 
ject, a  free  entry  into  the  port  of  New  York,  might  be  attained, 
and  that  too  in  open  defiance  of  her  laws.  It  is  one  thing,  to 
merely  navigate  those  waters;  another,  to  enter  the  port  of  New 
York.  He  connects  these  together,  and  we  cannot  disjoin  them. 
His  purpose,  as  respects  New  York,  was  an  unlawful  one ;  nor 
is  it  authorized  by  the  law  on  which  this  action  is  brought,  or 
any  other  law  of  this  state.  No  word  or  sentence  of  the  law  of 
1820  will  boar  such  a  construction.  But  if,  by  an  ingenious  and 
forced  construction,  it  could  be  said  to  imply  a  power,  such  as  is 
demanded  by  the  plaintiff,  no  court  would  believe  that  the  legi^- 
lature  of  New  Jersey  could  have  intended  to  commit  so  unpre- 
cedented1 a  violation  of  the  rights  and  sovereignty  of  a  sister  state ; 
and  as  it  is  the  manifest  intention  of  the  law  makers  that  gives  a 
direction  to  courts,  their  decisions  would  be  in  conformity  to  that 
intention.  Nay,  if  the  law,  in  terms,  had  authorized  the  purposes 
of  the  plaintiff',  we  are  not  without  authority  to  shew  that  our 
courts  are  bound  not  to  execute  a  law  repugnant  to  the  first 
principles  of  justice.  1  Black.  Com.  91 — "If  there  arise  out  of 


NOVEMBEE  TEEM,  1822.  283 

Gibbons  v.  Livingston. 

a  law,  collaterally,  any  absurd  consequences  manifestly  contra- 
dictory to  common  reason,  they  are,  with  regard  to  those  conse- 
quences, void.  Thus  if  an  act  of  parliament  gives  a  man  power 
to  try  all  causes  within  his  manor  of  Dale,  yet  if  a  cause  should 
arise  in  which  he  is  a  party,  the  act  is  construed  not  to  extend 
to  that,  because  it  is  unreasonable  that  any  man  should  deter- 
mine his  own  quarrel." 

It  is  laid  down,  as  the  law  of  nations,  in  Vattel  201-2,  215- 
17.  "Nations  are  forbid  to  hurt  or  offend  any  other  nation,  or 
in  any  way  create  disturbance  or  foment  discord.  Nothing  is 
more  opposite  to  the  duties  of  humanity,  nor  more  contrary  to 
the  society  which  should  be  cultivated  by  nations,  than  offences 
or  actions  which  give  a  just  displeasure,  that  we  should  avoid 
them  if  possible.  A  few  medals  and  dull  jests  against  Louis 
XIV.  occasioned  a  war  which  brought  the  United  Provinces  to 
the  brink  of  ruin.  It  is  a  necessary  consequence  of  the  inde- 
pendence of  nations,  that  all  have  a  right  to  be  governed  as  they 
may  think  proper,  and  none  have  the  least  authority  to  interfere 
in  the  government  of  another  state,  or  set  itself  up  as  a  judge 
of  its  conduct.  Of  all  the  rights  that  belong  to  a  nation,  sover- 
eignty is  the  most  precious,  and  that  which  others  ought  the 
most  scrupulously  respect  if  they  would  not  do  an  injury."  These 
principles  are  classed,  by  that  celebrated  writer,  amongst  the 
perfect  rights  of  nations. 

New  Jersey  claiming,  for  the  reasons  before  mentioned,  a 
right  to  the  navigation,  free  trade,  fishing,  &c.  in  the  specified 
•waters  of  New  York,  contends  only  for  these,  regulated  by  the 
general  law,  applicable  to  the  subject  matter  she  is  in  the  exer- 
cise of,  and  not  in  defiance  of  all  law.  If,  when  under  the  colo- 
nial government  of  Great  Britain,  a  subject  of  the  colony  of 
New  Jersey  had  chosen  to  violate  the  revenue  laws  of  New 
York,  could  he  have  set  up  as  a  legal  defence,  the  right  of  nav- 
igation, founded  on  the  law  of  nations,  the  common  law  of  Eng- 
land, or  the  grant  from  the  duke  of  York  ?  Since  the  declaration 
of  independence,  and  our  total  emancipation  from  the  government 
of  Great  Britain,  when  each  of  the  thirteen  states  became  com- 
pletely sovereign  in  its  own  right,  could  such  an  offender  against 
the  laws  successfully  claim  an  exemption  by  a  pretension  like  that? 
It  will  not,  I  presume,  be  contended  in  either  case,  that  the  plea 
would  have  been  of  any  avail.  New  York,  then,  became  fully  pos- 


284  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Livingston. 

sessed  of  all  the  inherent  rights  of  a  sovereign  power  ;  and,  unless 
in  joining  our  great  family  compact  she  has  surrendered  these  par- 
ticular rights, she  still  retains  them.  I  see  nothing  in  the  constitu- 
tion of  the  United  States  that  sanctions  a  belief  that  they  are  sur- 
rendered. Two  sections  of  that  instrument,  only,  appear  to  bear  on 
this  subject :  the  one  regulates  commerce,  the  other  secures  to  the 
citizens  of  all  the  states  the  rights  of  citizens  in  each  individual 
state,  but  no  more.  What  is  prohibited  to  a  citizen  of  an  individual 
state,  no  citizen  of  another  state  can  be  justified  in  practising  there. 
New  York,  without  contradiction  or  complaint,  now  has  her  port 
regulations  established  by  law;  her  wharf,  river  or  bay  regula- 
tions, her  quarantine  laws,  &c. ;  can  a  citizen  of  New  Jersey  expect 
to  enter  her  ports  in  direct  violation  of  any,  or  all  these,  perhaps, 
in  the  pursuit  of  some  supposed  profitable  speculation,  and  carry  a 
mortal  contagion  into  her  ports  and  make  desolate  her  capital. 
None  can  be  hardy  enough  to  support  a  proposition  so  absurd. 
Deeds  for  land,  bonds  or  contracts  under  seal,  are  solemn  instru- 
ments ;  but  if  made  in  contradiction  to  the  public  policy  or  interest, 
or  with  unlawful  intentions,  they  are  declared  void.  A  man  may 
have  a  right  of  way  over  my  lands,  but  if  he  is  using  this  right 
only  for  the  avowed  purpose  of  burning  my  buildings,  destroying 
my  enclosures,  or  injuring  my  family,  his  right  of  passage  will 
not  avail  him  in  an  action,  for  that  I  had  taken  measures,  with- 
out force,  to  prevent  the  completion  of  his  nefarious  object. 

If  we,  as  a  people,  by  the  universal  law  of  nations,  have  no 
possible  right  to  control  or  violate  the  laws  of  an  unconnected 
independent  sovereignty,  as  a  member  of  a  great  confederacy 
established  for  the  express  purpose  "  of  a  more  perfect  union  to 
establish  justice,  ensure  domestic  tranquility,  promote  the  gene- 
ral welfare,  and  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity."  New  Jersey  is  peculiarly  bound  by  the  strongest 
of  all  ties,  self-preservation  itself,  to  cleave  to  the  constitution 
of  the  United  States  as  the  sheet  anchor  of  its  existence  as  an 
independent  power,  and  "give  full  faith  and  credit  to  the  public 
acts  and  judicial  proceedings  of  our  sister  states,"  when  not  in 
violation  of  that  independence;  a  contrary  conduct,  persisted  in, 
would  prostrate  long  settled  public  principles,  founded  on  immu- 
table justice,  violate  the  laws  and  sacred  charter  of  our  confed- 
eracy, and  jeopardize,  not  only  the  peace  and  happiness,  but  tho 
very  existence,  of  our  republic. 


NOVEMBER  TERM,  1822.  285 

Gibbons  v.  Ogden. 

The  purpose  of  the  plaintiff  is  openly  avowed;  to  consummate 
that  unlawful  purpose,  only,  was  he  desirous  of  navigating  the 
waters  between  the  two  states.  He  declares,  that  he  was 
restrained  from  its  completion,  not  by  force  or  violence,  but 
by  an  injunction  out  of  chancery ;  and  I  cannot  perceive  any 
principle  of  law,  justice,  or  public  policy,  that  should  entitle  him 
to  recover  damages;  and  think,  therefore,  that  judgment  ought 
to  be  entered  for  the  defendant. 

FORD  «T.  concurred  with  the  Chief  Justice. 
Demurrer  overruled. 

CITED  IN  Gibbons  v.  Ogdcn,  1  Hal.  285-299.     Clark  v.  Collins,  3  Or.  473. 


THOMAS  GIBBONS  against  AARON  OGDEN. 

1.  Where  an  action  is  brought  upon  a  public  statute,  it  is  not  necessary  to  aver 
in  the  declaration,  that  the  cause  of  action  accrued  after  the  passing  of  the  statute. 
Thus  upon  the  act  of  25th  February,  1820,  it  is  sufficient  if  the  enjoining  is  laid 
to  be  after  the  act  went  into  operation,  without  specially  averring  that  it  was  so. 

2.  An  action  upon  the  third  section  of  the  act  of  25th  February,1820,  ( Rev  Laws 
689)  "for  restraining  the  plaintiff  from  navigating  the  waters  between  the  ancient 
shores  of  New  York  and  New  Jersey,"  is  not  a  local,  but  a  transitory,  action. 

3.  In  an  action  upon  this  statute,  it  is  sufficient  to  aver,  that  the  restraint 
complained  of  "  was  on  the  waters  of  the  bay  of  New  York,"  which  said  waters 
lie  between  the  ancient  shores  of  New  Jersey  and  New  York,  without  setting 
forth  any  act  done  in  either  of  the  said  states  in  particular.    If  it  is  material  to 
the  defendant  to  bring  up  this  matter,  he  ought  to  do  so  by  pleading. 

4.  If  the  declaration  avers,  that  the  restraining  and  enjoining  was  on  the 
waters  of  the  bay  of  New  York,  and  that  the  said  waters  lie  between  the  ancient 
shores  of  New  York  and  New  Jersey,  and  the  fact  should  be,  that  the  waters 
of  the  bay  of  New  York  are  no  part  of  the  waters  lying  between  the  ancient 
shores  of  these  states,  yet  this  is  a  matter  of  fact  to  be  tried  by  the  jury,  and 
cannot  be  determined  by  the  court  upon  demurrer. 

5.  In  an  action  upon  the  statute  of  25th  February,  1820,  section  third,  for 
restraining  plaintiff  oy  virtue,  or  under  colour,  of  any  laws  of  New  York,  it  ia 
not  necessary  to  set  out  those  laws  specifically,  because  they  are  mere  matters 
of  inducement. 

6.  Though  this  court  is  of  opinion,  that  the  statute  upon  which  this  action  is 
founded  is  unconstitutional,  so  far  as  it  makes  a  person  liable  for  transactions 
done  in  the  state  of  New  York,  under  the  lexfori  of  that  state,  yet  inasmui-h  as 
a  court  of  co-ordinate  jurisdiction  has  so  far  adjudged  this  law  constitutional  as 
to  carry  it  into  effect,  and  inasmuch  as  it  is  of  importance  that  the  administra- 
tion of  justice  should  be  uniform  in  this  state,  this  court  is  induced  to  yield  its 
own  opinion,  and  to  say,  that  the  demurrer  should  be  overruled. 

This  was  an  action  of  trespass  on  the  case,  brought  by  Thomas 
Gibbons  against  Aaron  Ogden,  upon  the  statute  of  the  25th  of 
February,  1820,  (Rev.  Laws  689)  to  recover  damages  because 
the  said  Thomas  Gibbons  had  been  restrained  and  enjoined  from 


286  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Ogden. 

navigating  with  his  steam-boat,  the  waters  between  the  ancient 
shores  of  New  York  and  New  Jersey,  by  an  injunction  issued  out 
of  the  Court  of  Chancery  of  the  state  of  New  York,  in  a  suit 
wherein  the  said  Aaron  Ogden  was  complainant,  and  Thomas 
Gibbons  defendant.  The  first  count  in  the  declaration  was  as 
follows:  "Thomas  Gibbons  complains  of  Aaron  Ogden  for,  that 
heretofore,  to  wit,  on  the  twenty-first  day  of  October,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  eighteen,  at  a  Court 
of  Chancery  holden  for  the  state  of  New  York,  at  the  city  of 
Albany,  to  wit,  at  Newark,  in  the  said  county  of  Essex,  a  certain 
rule  and  order,*  by  the  said  Court  of  Chancery,  in  a  suit  wherein 
the  said  Aaron  Ogden  was  complainant,  and  the  said  Thomas  Gib- 
bons was  defendant,  was  made  at  the  instance  of  the  said  Aaron 
Ogden,  whereby  it  was  then  and  there  ordered,  that  a  writ  or 
writs  of  injunction  issue  out  of  and  under  the  seal  of  the  said 
court,  to  be  directed  to  the  said  Thomas  Gibbons,  and  to  all  and 
every  his  confederates,  agents,  captains,  pilots,  engineers,  mari- 
ners, and  servants,  commanding  them  and  every  of  them,  under  a 
certain  penalty  therein  to  be  expressed,  absolutely  to  desist  from 
using,  employing,  and  navigating  the  two  steam-boats  in  the  said 
bill  of  the  said  Aaron  Ogden  particularly  mentioned,  the  one 
named  the  Stoudingor,  but  usually  called  the  Mouse,  the  other 
named  the  Bellona,  or  either  of  them,  or  any  other  steam-boat  or 
Bteam-boats  purchased  or  built  by  the  said  Thomas  Gibbons,  on 
the  waters  of  the  state  of  New  York  lying  between  Elizabeth 
Town,  in  the  state  of  New  Jersey,  or  any  place  within  the  town- 
ship of  Elizabeth  Town  aforesaid  and  the  city  of  New  York,  which 
said  waters  comprise,  in  part,  the  bay  of  New  York,  and  lie  be- 
tween the  ancient  shores  of  the  state  of  New  York  and  the  state 
of  New  Jersey,  until  the  said  Thomas  Gibbons  should  have  fully 
answered  the  bill  of  the  said  Aaron  Ogden,  and  until  the  further 
order  of  the  said  court  in  the  premises.  And  thorsaid  Thomas 
avers,^hat  the  said  .order  was  then  and  there  made  by  the  said 
Court  of  Chancery  of  the  state  of  New  York,  by  virtue  of  divers 
acts  of  the  legislature  of  the  said  state  of  New  York,  to  wit,  an  act 
entitled,  "An  act  repealing  an  act  entitled  an  act  for  granting  and 
securing  to  John  Fitch  the  sole  right  and  advantage  of  making 
and  employing  the  steam-boat  by  him  lately  invented,  and  for 

*  See  the  cases  reported,  in  which  the  orders  mentioned  in  the  declaration  were 
made.    4  John.  Chan.  Rep.  150,  174. 


NOVEMBER  TERM,  1822.  287 

Gibbons  v.  Ogden. 

other  purposes;"  an  act  entitled,  "An  act  relative  to  a  steam- 
boat;" an  act  entitled,  "An  act  to  revive  an  act  entitled  an  act 
relative  to  a  steam-boat ;"  an  act  entitled,  "An  act  for  the  further 
encouragement  of  steam-boats  on  the  waters  of  this  state,  and  for 
other  purposes ;  "  an  act  entitled,  "An  act  for  the  more  effectual 
enforcement  of  the  provisions  contained  in  an  act  entitled  an  act 
for  the  further  encouragement  of  steam-boats  on  the  waters  of  this 
state,  and  for  other  purposes,"  which  said  acts  are  mentioned  and 
referred  to  in  the  bill  of  complaint  exhibited  by  the  said  Aaron 
Ogden,  as  complainant  in  the  said  suit  in  chancery.  And  the  said 
Thomas  further  saith,  that  he,  the  said  Thomas,  on  the  said  twen- 
ty-first day  of  October,  in  the  year  eighteen  hundred  and  eighteen, 
and  for  a  long  timeibefore,  and  from  thence  hitherto  continually 
has  been,  and  still  is,  a  citizen  of  the  state  of  New  Jersey,  to  wit, 
at  Newark  aforesaid,  and  that  during  all  the  time  aforesaid  he, 
the  said  Thomas,  had  been,  and  still  is,  the  sole  owner  of  a  cer- 
tain steam-boat,  called  the  Bellona,  mentioned  in  said  order,  and 
moving  with  steam  and  fire,  to  wit,  at  Newai'k  aforesaid ;  and 
that  the  said  steam-boat,  during  all  the  time  aforesaid,  continually 
Las  been,  and  still  is,  a  vessel  above  twenty  tons  burthen,  duly 
enrolled  at  the  port  of  Perth  Amboy,  in  the  state  of  New  Jersey, 
in  the  manner  and  form  in  such  case  required  by  the  laws  of  the 
United  States,  and  duly  licensed  to  be  employed  in  carrying  on 
the  coasting  trade,  according  to  the  laws  of  the  United  States,  in 
such  case  made  and  provided,  to  wit,  at  Newark  aforesaid.  And 
the  said  Thomas  further  saith,  that  afterwards,  to  wit,  on  the 
twenty-fourth  day  of  October,  in  the  year  eighteen  hundred  and 
eighteen,  the  said  Aaron  Ogden,  pursuant  to,  and  under,  and  by 
virtue  of,  the  said  acts  of  the  legislature  of  the  state  of  New  York, 
to  wit,  at  Newark  aforesaid,  caused  and  procured  to  be  sued  and 
prosecuted  out  of  the  said  Court  of  Chancery  of  the  state  of 
New  York,  a' certain  writ  of  injunction  under  the  seal  of  the  said 
court,  and  bearing  date  on  the  said  twentj'-fourth  day  of  Octo- 
ber, in  the  year  eighteen  hundred  and  eighteen,  directed  to  the 
said  Thomas  Gibbons  and  his  confederates,  captains,  pilots, 
engineers,  mariners,  servants,  counsellors,  attorneys,  solicitors, 
and  agents,  and  each  and  every  of  them,  by  which  said  writ  the 
said  Thomas  Gibbons  and  his  confederates,  captains,  pilots,  en- 
gineers, mariners,  servants,  counsellors,  attorneys,  solicitors,  and 
agents,  and  each  and  every  of  them,  under  the  penalty  of  ten 


288  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Ogden. 

thousand  dollars,  to  bo  levied  on  their  and  every  of  their  lands, 
goods,  and  chattels,  were  enjoined  and  commanded  absolutely 
to  desist  and  refrain  from  using,  employing,  and  navigating  the 
two  steam-boats  in  the  bill  of  the  said  Aaron  Ogden  particularly 
mentioned,  the  one  named  the  Stoudinger,  but  usually  called  the 
Mouse,  and  the  other  named  the  Bcllona,  or  either  of  them,  or 
any  other  steam-boat  purchased  or  built  by  the  said  Thomas 
Gibbons,  on  the  waters  of  the  state  of  New  York,  lying  between 
Elizabeth  Town,  in  the  state  of  New  Jersey,  and  any  place 
within  the  township  of  Elizabeth  Town  aforesaid  and  the  city 
of  New  York,  until  the  said  Thomas  Gibbons  should  have  fully 
answered  the  bill  of  the  said  Aaron  Ogden,  and  until  the  further 
order  of  the  said  Court  of  Chancery  to  the  pontrary.  And  the 
said  Thomas  further  saith,  that  afterwards,  to  wit,  on  the  sixth 
day  of  October,  in  the  year  eighteen  hundred  and  nineteen,  at 
the  said  Court  of  Chancery,  holden  for  the  said  state  of  New 
York,  at  the  city  of  Albany,  to  wit,  at  Newark  aforesaid,  a  cer- 
tain other  rule  and  order  by  the  said  court  in  the  said  suit  was 
made,  whereby  it  was  then  and  there;  further  ordered,  that  the 
said  injunction,  which  had  theretofore  issued  in  said  cause,  should 
be  confined  in  its  operation  to  the  whole  of  the  waters  in  the  bay 
of  New  York,  on  the  passage  or  route  between  the  city  of  New 
York  and  Elizabeth  Town  Point,  or  Elizabeth  Town,  or  any  part 
thereof,  and  that  it  should  be  understood  not  to  apply  to  the 
waters  of  the  Sound  that  lie  between  Staten  Island  and  the  state 
of  New  Jersey,  so  long  as  the  boat  or  boats  of  the  said  Thomas 
Gibbons,  the  defendant,  should  not  enter  the  bay  of  New  York. 
And  the  said  Thomas  further  saith,  that  afterwards,  and  on  the 
second  day  of  April,  in  the  year  eighteen  hundred  and  twenty, 
and  from  thence  continually,  until  the  time  of  commencing  this 
suit,  and  during  all  the  intervening  time  between  the  said  second 
day  of  April,  in  the  year  eighteen  hundred  and  twenty,  and  the 
said  time  of  commencing  this  suit,  to  wit,  at  Newark  aforesaid, 
the  said  Aaron  Ogden,  under  and  by  virtue  of  the  said  orders  and 
the  said  writ  of  injunction,  sued  out  and  prosecuted  by  virtue  of 
the  said  acts  of  the  legislature  of  the  state  of  New  York,  in  the 
said  suit  in  the  Court  of  Chancery  of  the  state  of  Now  York, 
wherein  he,  the  said  Aaron  Ogden,  was  complainant,  caused  the 
said  Thomas  Gibbons  to  be  restrained  and  enjoined  from  navi- 
gating, with  his  said  steam-boat,  the  Bellona,  moved  with  steam 


NOVEMBER  TERM,  1822.  289 

Gibbons  v.  Ogden. 

and  fire  as  aforesaid,  the  waters  of  the  bay  of  New  York,  on  the 
passage  or  route  between  the  city  of  New  York  and  Elizabeth 
Town  Point,  or  Elizabeth  Town,  or  any  part  thereof,  which  said 
waters  lie  between  the  ancient  shores  of  the  state  of  New  York 
and  the  state  of  New  Jersey,  contrary  to  the  form  of  the  act  of 
the  legislature  of  the  state  of  New  Jersey,  in  such  case  made  and 
provided,  and  thereby  he,  the  said  Aaron  Ogden,  hindered  and 
prevented  the  said  Thomas  Gibbons  from  navigating,  with  his 
said  steam-boat,  the  Bellona,  the  said  waters  in  the  bay  of  New 
York,  on  the  passage  or  route  between  the  city  of  New  York  and 
Elizabeth  Town  Point,  or  Elizabeth  Town,  or  any  part  thereof, 
which  said  waters  lie  between  the  ancient  shores  of  the  state 
of  New  Jersey  and  the  state  of  New  York,  during  all  the  time 
aforesaid.  And  the  said  Thomas  further  saith,  that  before  the 
said  second  day  of  April,  in  the  year  eighteen  hundred  and 
twenty,  to  ivit,  on  the  twentieth  day  of  October,  in  the  year 
eighteen  hundred  and  eighteen,  at  Newark  aforesaid,  he,  the 
said  Thomas,  at  great  expense,  procured  agents,  labourers,  mari- 
ners, and  servants  to  navigate  and  run  his  said  steam-boat,  the 
Bellona,  from  and  to  a  place  in  the  township  of  Elizabeth  Town 
aforesaid,  in  the  state  of  New  Jersey,  called  Halsted's  Point  to 
and  from  the  port  of  the  city  of  New  York,  in  the  state  of  New 
York,  through  and  over  the  waters  on  the  bay  of  New  York,  on 
the  passage  or  route  between  the  city  of  New  York  and  Eliza- 
beth Town  aforesaid,  lying  between  the  ancient  shores  of  the 
state  of  New  Jersey  and  the  state  of  New  York,  as  aforesaid,  in 
running  and  navigating  to  and  from  the  said  ports  or  places 
respectively,  for  the  carrying  and  transportation  of  freight  and 
passengers,  and  then  and  there  had  fitted  out  and  equipped  his 
said  steam-boat  with  all  necessary  engines,  tackle,  apparel,  and 
furniture,  for  pl}*ing  and  running  between,  and  to,  and  from,  the 
said  ports  or  places  respectively,  and  through  and  over  the  waters 
on  the  bay  of  New  York,  and  on  the  passage  or  route  aforesaid,- 
and  lying  between  the  ancient  shores  of  the  state  of  New  Jer- 
sey and  the  state  of  New  York,  as  aforesaid,  and  during  all  the 
time  aforesaid,  between  the  said  second  day  of  April,  in  the  year 
eighteen  hundred  and  twenty,  and  the  said  time  of  commencing 
this  suit,  he,  the  said  Thomas,  kept  and  retained  the  said  agents, 
labourers,  mariners,  and  servants  for  the  purpose  aforesaid,  and 
kept  and  continued  his  said  steam-boat,  fitted  out  and  equipped 

VOL.  I.  T 


290  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Ogden. 

as  aforesaid,  and  for  the  purpose  aforesaid,  to  wit,  at  Newark 
aforesaid,  and  by  means  of  the  restraining  and  enjoining  afore- 
said, by  the  said  Aaron  Ogden,  during  the  time  aforesaid,  of 
the  said  Thomas  from  navigating,  with  his  said  steam-boat,  the 
waters  above  mentioned,  he,  the  said  Thomas,  during  all  that 
time,  lost  and  was  deprived  of  the  use  of  his  said  steam-boat,  and 
thereby  the  said  steam-boat  became  greatly  spoiled  and  lessened 
in  value,  and  the  said  Thomas  was  put  and  subjected  to  great 
damages,  expenses,  and  charges  in  paying  off  the  said  agents, 
labourers,  mariners,  and  servants,  for  their  hire  and  wages  which 
accrued  during  all  the  time  aforesaid,  between  the  said  second  day 
of  April,  in  the  year  eighteen  hundred  and  twenty,  and  the  said 
time  of  commencing  this  suit,  and  in  repairing  the  said  steam- 
boat, her  engine,  tackle,  apparel,  and  furniture,  during  the  time 
aforesaid,  amounting,  in  the  whole,  to  a  large  sum  of  money,  to 
wit,  the  sum  of  five  thousand  dollars,  to  wit,  at  Newark  aforesaid. 

The  second  count  in  the  declaration  was  precisely  the  same 
as  the  first,  only  it  averred  the  order  of  the  Court  of  Chancery 
for  an  injunction,  issued  "  under  colour  of  divers  acts  of  the  legis- 
lature of  New  York,"  instead  of  by  "virtue  of  several  acts  of  the 
legislature  of  New  York." 

To  this  declaration,  the  defendant  demurred  specialty,  and 
assigned  for  cause  a  variety  of  reasons,  which  are  fully  stated 
in  the  argument  of  the  opening  counsel. 

Ogden,  in  support  of  demurrer,  said — 1".  Cause  of  demurrer. 
This  action  is  founded  on  a  recent  statute,  and  it  is  not  averred  in 
the  declaration,  that  the  cause  of  action  arose  since  its  passage. 
In  a  recent  statute,  there  must  bo  an  averment,  that  the  cause  of 
action  arose  since  its  passage.  1  Saund.  309,  a.  note  5.  This  is  al- 
ways necessary  when  time  is  material  and  traversable,  as  it  is  here. 
II.  The  cause  of  action,  if  any,  is  local,  and  not  transitory,  and 
the  venue  ought  to  have  been  laid  in  the  county  of  Bergen,  where 
it  arose,  and  so,  not  in  the  county  of  Essex;  or  if  it  happened 
out  of  the  state,  with  such  an  averment,  with  a  videlicet,  &c.,  of 
a  county  in  this  state.  The  restraints  in  the  declaration  are  laid 
to  be  in  the  bay  of  New  York,  between  the  ancient  shores  of  the 
two  states,  and  so  the  court  are  bound  to  say,  that  they  were 
imposed,  partly  in  the  county  of  Bergen,  and  partly  in  the  state 
.of  .New  York. 


NOVEMBER  TERM,  1822.  291 

Gibbons  v.  Ogden. 

1.  Where  the  place  is  material  or  traversable,  the  action  is 
local,  and  the  venue  must  be  laid  accordingly.     1   Chit.  384. 
Now,  in  this  case,  the  place  is  absolutely  material,  for  if  the 
restraint  had  been  in  any  county  on  the  Delaware,  it  could  not 
have  been  obnoxious  to  this  law  ;  the  restraint  must  have  been 
between  the  ancient  shores  of  New  York  and   New  Jersey. 
Comyngs  Dig.  Action  N.  4,  5. 

2.  Again — if  the  cause  of  action  could  have  arisen  in  one 
particular  county  only,  it  is  local,  and  the  venue  must  be  laid 
there.     1  Chit.  270,  271,  No.  51.     Now  this  cause  of  action  must 
have  arisen  in  the  county  of  Bergen,  which  alone  comprehends 
waters  lying  between  the  ancient  shores  of  the  two  states,  within 
the  bay  of  New  York.     Bloom.  N.  J.  Laws,  177. 

3.  If  the  cause  of  action  happened  abroad,  the  description 
must  be  set  out  truly,  and  then  the  venue  must  be  given  for  the 
sake  of  the  trial,  with  a  videlicet,  1  Chit.  270.  No.  50,  Ib.  281. 

4.  Local  matters,  arising  out  of  the  realm,  ought  not,  gener- 
ally, to  be  tried  any  where  but  where  they  arise,  although  it  be 
otherwise  in  matters  ex  contracto,  and  sometimes  ex  delicto.     1 
Chit.  269,  No.  48,  4  Term.  Eep.  503. 

5.  If  a  local  description,  or  venue,  be  omitted,  where  neces- 
sary, it  is  matter  of  demui*rer.    1  Saund.  74.    Cowp.  170.    1  Chit. 
285. 

III.  Cause  of  demurrer.  Declaration  under  the  same  venue, 
charges,  as  trespasses,  acts  done  between  the  ancient  shores  of 
the  two  states,  without  any  special  averment  of  any  such  acts, 
as  done  within  the  territory  and  jurisdiction  of  New  York,  or 
within  the  territory  and  jurisdiction  of  New  Jersey,  whereby 
defendant  is  prevented  from  making  a  proper  defence  by  justify- 
ing, in  the  one  case,  and  pleading  not  guilty  in  the  other  case. 

The  whole  question,  in  regard  to  the  third  cause  of  demurrer, 
arises  under  this  fourth  venue,  in  the  first  count,  and  the  fifth 
venue,  in  the  second  count,  which  are  precisely  similar. 

From  the  charges  comprised  with  these  two  venues,  alone, 
is  it,  that  there  is  &ny  restraint  laid  in  this  declaration,  and,  from 
a  recurrence  to  them,  the  gravamen  appears  to  be,  that  plaintiff 
is  restrained  from  navigating  the  bay  of  New  York,  or  any  part 
thereof  (without  any  averment  of  any  restraint  in  either  state) 
and  within  same  venue. 

This  court  is  bound  to  take  notice,  that  the  waters  which  lie 


292  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Ogden. 

in  the  bay  of  New  York,  on  the  westerly  side  of  the  midway  line, 
are  within  the  territory  and  jurisdiction  of  this  state.  Bloom.  N.J, 
L.  177.  And  that  the  waters  on  the  easterly  sido  of  that  line,  on 
the  route  or  passage  aforesaid,  are  in  the  territory  and  jurisdic- 
tion of  New  York;  and,  consequently,  that  there  is  contained  in 
the  said  venue,  two  distinct  traversable  facts,  one,  as  to  a  restraint 
in  the  territory  and  jurisdiction  of  New  York,  and  the  other,  as 
to  a  restraint  within  the  territory  and  jurisdiction  of  New  Jersey, 
which  naturally  require  distinct  defences,  and  are  wholly  dif- 
ferent as  to  their  consequences,  that  is  to  say,  as  to  the  restraint 
in  New  Jersey,  this  defendant  must  necessarily  plead  not  guilty, 
but  as  to  the  restraint  in  New  York,  defendant  may  justify  under 
the  decree  of  the  court,  or  plead  specially,  that  the  cause  of 
action  was  local,  and  arose  out  of  the  jurisdiction  of  the  court, 
or  in  many  other  ways,  and  so  keep  the  different  questions,  as 
to  each  territory,  entirely  distinct;  but  plaintiff  has  herein,  for 
his  own  purposes,  departed  from  a  form  of  pleading,  to  the  bene- 
fit of  which  this  defendant  was  entitled ;  for  ho  is  not  bound  to 
plead  matter  which  plaintiff  ought  to  shew.  There  should  be  a 
distinct  venue,  distinctly  laid,  for  every  material  and  traversable 
fact.  1  Chit.  281,  No.  37. 

IV.  Cause  of  demurrer.  For  that  the  plaintiff  has  not  shewn 
sufficient  matter  in  his  declaration  to  entitle  him,  under  the 
statute  of  New  Jersey,  to  bring  the  present  suit.  The  statute 
requires,  that  the  writ  of  injunction,  or  order,  of  the  Court  of 
Chancery  of  New  York,  by  which  the  plaintiff  was  restrained, 
should  be  in  virtue  of  some  act  of  the  legislature  of  that  state; 
(Rev.  Laws  689,  sec.  3)  that  such  restraint  should  be  co-extensive 
with  the  waters  between  the  two  states;  and  that  this  defendant 
should  have  been  plaintiff  in  such  writ  or  order. 

1.  As  to  the  statutes  of  New  York.     1.  The  act  of  9th  April, 
1811,  of  New  York,  provides,  that  in  case  of  an  action  for  for- 
feiture, the  court  should,  by  writ  of  injunction,  retain  the  pro- 
perty within  the  jurisdiction  of  the  court,  pendente  lite.     The 
above  statute  is  referred  to  in  the  declaration,  but  there  is  none 
other  which  makes  any  provision  whatever  for  any  injunction. 

2.  The  other  statutes  merely  grant  the  exclusive  right  over  all 
the  waters  within  the  territory  of  New  York,  and  add  the  statu- 
tory sanction  of  forfeiture,  as  in  the  Jersey  law  to  John  Fitch, 
in  1786,  but  does  not  aver,  that  such  acts  claim  such  territory  to 


NOVEMBER  TEEM,  1822.  293 

Gibbons  v.  Ogden. 

be  co-extensive  with  the  waters  between  the  ancient  shores,  &c., 
and  no  actual  restraint  is  averred  on  the  west  side. 

The  injunction,  therefore,  was  neither  prayed  for,  nor  granted, 
in  virtue  of  any  delegated  authority,  but  under  the  general  power 
of  a  Court  of  Chancery  to  protect  a  right,  precisely  as  patent  rights 
are  protected  by  injunctions. 

II.  Let  us  suppose,  for  a  moment,  that  this  is  a  statutory  in- 
junction, 3~et  it  does  not  satisfy  our  act.  In  order  to  do  that, 
the  statute  of  New  York  should  authorize  an  injunction  co-exten- 
sive with  the  waters  between  the  ancient  shores,  whereas  it  does 
not  pretend  to  extend  beyond  the  territory  of  that  state. 

1.  The  order  for  the  injunction  of  October,  1818,  although  laid' 
to  be  at  the  instance  of  this  defendant,  cannot  satisfy  our  law, 
because  it  is  confined  to  the  territory  of  New  York,  and  does  not 
extend  over  the  intermediate  waters,  neither  can  it  be  extended 
by  any  statute  before  the  court,  or  in  existence. 

2.  The  order  of  October,  1819,  cannot  justify  our  laws,  because 
not  authorized,  in  any  possible  way,  by  the  statutes  which  have 
been  relied  upon ;  besides,  it  is  not  laid  that  this  last  order  was 
made  at  the  instance  of  this  defendant,  or  that  he  was  plaintiff 
therein.     It  extends  over  the  whole  bay  of  New  York,  and  was 
made,  on  a  motion  to  dissolve  the  injunction,  on  behalf  of  Mr. 
Gibbons,  who,  in  his  answer,  had  set  forth  these  waters,  as  being 
in  the  state  of  New  York. 

V.  Cause  of  demurrer.     For  that  the  plaintiff  has  impleaded 
this  defendant,  on  account  of  a  transaction  in  the  state  of  New 
York,  done  under  the  lex  loci  of  that  state,  and  in  pursuance  and 
execution  of  a  decree  of  the  Court  of  Chancery  there,  in  a  suit 
between  the  parties  in  the  present  action. 

[See  the  case  of  Livingston  &  Gibbons,  for  the  argument  on  this 
point.  Ante  236.] 

VI.  Cause  of  demurrer.     For  that  the  ground  of  action  is 
certain  statutes,  records,  and  judicial  proceedings  in  the  state 
of  New  York,  and  that  they  are  not  set  forth  with  sufficient 
certainty  and  precision,  so  as  to  enable  a  defendant  to  plead 
thereto  in  a  proper  manner,  and  as  by  law  he  is  entitled. 

In  order  to  comply  with  the  provisions  of  the  statute  of  New 
Jersey,  the  plaintiff  must  shew  a  decree  of  the  Court  of  Chan- 
cery of  New  York  ;  an  injunction  under  that  decree;  and  that 
such  injunction  was  in  virtue  of,  or  under  colour  of,  some  act  of 


294  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Ogden. 

the  legislature  of  that  state.  All  these  are  matters  of  record,  and, 
being  the  foundation  of  the  suit,  the  whole  should  be  set  forth 
•with  all  that  certainty  which  is  requisite  in  pleading  records. 

1.  As  to  these  judicial  proceedings:  first,  there  is  no  averment 
of  place;  second,  no  specification  of  time;  third,  no  specification 
of  the  parties;. fourth,  no  specification  of  the  person  before  whom 
proceedings  were  had,  and  so,  also,  no  specification  of  the  judg- 
ment which  was  pronounced. 

And  in  regard  to  the  statutes,  which  are  also  matters  of  record, 
there  is  no  averment  of  date,  none  of  place,  nor  any  specification 
of  contents;  so  that  this  court  cannot  perceive,  from  this  declara- 
tion, whether  this  injunction  or  restraint  was  by  any  order  of  the 
Court  of  Chancery  of  New  York;  whether  it  was  in  virtue  <Jf 
any  act  of  the  legislature  of  New  York;  or  whether  it  covered 
the  intermediate  waters ;  neither  can  this  defendant  plead  thereto, 
that  there  were  no  such  records  as  are  set  forth  in  the  declara- 
tion ;  now  all  these  are  matters  of  law,  to  be  settled  by  the  court, 
which  cannot  be  done,  unless  they  are  laid  before  the  court. 

2.  The  rule  is,  where  a  record  is  the  ground  of  a  suit,  that  it 
ought  to  be  certainly  and  truly  alleged.     In  pleading  a  record,  it 
is  not  sufficient  to  say,  in  virtue  of  such  a  by-law,  or  such  a  writ. 
1  Chit.  240.     There  may  be  a  plea  of  nul  tiel  record  to  a  suit 
brought  on  a  judgment  in  another  state.     And  if  there  may  be  a 
plea  of  nul  tiel  record,  the  record  ought  to  be  set  out,  that  I  may 
know  how  to  plead.     1  Chit.  537.     5  East.  473. 

Wood,  in  reply.  In  answer,  if  we  have  not  been  able  to  steer 
through  this  Scylla  and  Charybdis  of  technical  nicety,  it  is  not 
for  want  of  attention.  As  to  the  first  point,  we  have  averred,  that 
the  act  complained  of  happened  after  the  passing  of  the  statute. 
The  time  laid  in  the  declaration  is  after  the  first  of  April,  1820, 
and  with  a  continuando ;  and  if  the  fact  is  not  shewn  to  have 
happened  since  the  act  went  into  operation,  the  defendant  may 
avail  himself  of  it  at  the  trial.  If  time  is  material,  and  you  make 
the  allegation  of  the  act  after  the  passage  of  the  statute,  it  is  suf- 
ficient. If  this  strictness  ever  was  required,  it  is  not  required  at 
this  day,  under  the  more  liberal  rules  of  pleading  adopted  by 
modern  times.  But  it  never  was  necessary  to  aver,  that  the 
statute  was  passed  before  the  cause  of  action  accrued.  1  Saund. 
309,  n.  3,  5.  Thia  rule  grew  out  of  the  particular  statute  of  5 


NOVEMBER  TEEM,  1822.  295 

Gibbons  v.  Ogden. 

Elizabeth,  as  to  apprentices;  but  there  is  no  such  rule  upon  a 
general  public  act,  of  which  the  court  are  bound  to  take  notice. 
We  allege,  that  this  restraining  took  place  between  the  2d  day 
of  April,  1820,  and  the  time  of  the  commencement  of  this  suit; 
and,  therefore,  the  time  is  material,  and  we  must  confine  our- 
selves within  that  period. 

2.  It  is  said,  that  the  cause  of  action  is  local,  and  the  venue  is 
not  laid  in  the  county  where  the  cause  of  action  arose.    Admit- 
ting the  cause  is  local,  yet  if  there  is  no  particular  county  in 
which  the  act  happened,  you  may  lay  your  venue  in  any  county 
you  choose.    1  Chit.  268,  273.    Here  it  does  not  appear,  that  the 
cause  of  action  arose  in  Bergen,  or  in  any  county  within  the 
state;  but  this  is  a  transitory  action.    The  waters  of  the  bay  of 
New  York  are  a  great   public  highway,  over  which   Thomas 
Gibbons  has  a  right  to  pass,  and  being  prevented  is  an  injury  to 
his  person  and  personal  property. 

3.  It  is  said,  that  part  of  ground   for  which  this  action  is 
brought  lies  in  the  state  of  New  York,  and  that  he  is  not  liable 
to  answer,  in  this  state,  for  any  act  in  New  York.    Although  our 
territorial  limits  extend  only  to  the  middle  of  the  river,  yet  the 
right  of  navigation  is  common  over  all  the  waters  tying  between 
the  two  states,  and  an  injury  to  the  rights  of  a  citizen  of  New 
Jersey,  on  any  of  those  waters,  must  be  answered  for  here.  But 
if  it  was  a  local  action,  yet,  upon  the  ground,  that  he  can  get  no 
redress  any  where  else,  this  court  would  have  jurisdiction,  and 
would  give  redress.   This  action  does  not  concern  real  property, 
but  is  a  transitory  action,  and  you  may  bring  the  action  wherever 
you  can  find  the  defendant. 

As  to  the  fourth  and  sixth  reasons  of  the  gentleman,  they  are 
substantially  the  same,  viz.  that  the  statutes  of  New  York  are 
not  set  out,  but  the  substance  of  this  interlocutory  order  is  set 
out,  and  the  acts  are  set  out,  so  far  as  to  identify  them,  and  it  is 
not  necessary  to  set  them  out  at  length,  because  it  will  lead  to 
prolixity  in  pleading;  for  the  rule  is,  that  when  a  subject  com- 
prehends a  multiplicity  of  matter  there,  in  order  to  avoid  pro- 
lixity, the  law  allows  general  pleading.  Crips  v.  Benton,  5  Bac. 
Abr.  339.  1  Chit.  Plead.  240.  2  Saund.  411,  note  4. 

4.  But  these  laws  and  ^hese  proceedings  in  the  state  of  New 
Yorlc,  are  not  the  foundation  of  this  action.  This  action  is  grounded 
on  our  own  statute,  and  the  statute  and  proceedings  of  New 


296  NEW  JERSEY  SUPREME  COURT. 


Gibbons  v.  Ogden. 


York  arc  mere  inducement,  and  particularity  is  not  required  in 
setting  out  matters  of  inducement.  5  Com.  Dig.  title  Plead.  C. 
31.  1  Chit.  Plead.  293. 

It  is  said,  that  if  these  laws  had  been  set  out  the  defendant 
would  have  had  a  right  to  plead  nul  tiel  record,  but  mere  mat- 
ter of  inducement  is  not  traversable.  Suppose  an  action  brought 
against  a  sheriff  for  an  escape,  a  party  could  not  plead  mil  tiel 
record  to  the  writ,  because  it  is  mere  matter  of  inducement. 
Besides,  this  is  an  action  on  the  case,  and  the  same  particularity 
in  pleading  is  not  required  in  this  action.  Again,  as  to  the  suit 
in  chancery  and  the  order,  the  same  particularity  is  used  in  this 
declaration  as  upon  a  suit  on  a  judgment.  But,  even  where  the 
judgment  was  the  foundation  of  the  action,  courts  have  relaxed 
in  the  nicety  and  strictness  of  pleading:  for  instance,  in  setting 
forth  the  proceedings  of  an  inferior  court,  after  giving  it  juris- 
diction, it  is  sufficient  to  say,  such  proceedings  were  thereupon  had, 
that  such  an  act  was  done  by  the  court.  1  John.  291.  2  Ib.  363. 
"Upon  what  ground  is  it  that  the  statutes  of  New  York  should  be 
set  out;  it  could  be  of  no  use,  except  to  shew  whether  the  in- 
junction issued  under  or  by  virtue  of  those  statutes;  but  if  they 
were  set  out  it  could  not  judicially  appear  that  the  injunction, 
issued  under  them;  we  should  have  to  make  an  averment  of 
that  fact  afterwards.  It  is  mere  matter  of  averment. 

Again,  the  act  of  the  legislature  says,  if  the  injunction  issued 
under  colour  of  the  laws  of  New  York,  and  if  you  set  out  the 
acts,  it  could  not  appear  that  they  were  issued  under  colour  of 
those  acts. 

The  fifth  reason  is,  because  the  plaintiff  complains  of  an  act 
done  in  New  York,  &c.  [See  the  argument  on  this  point  in  the 
preceding  case  of  Livingston  &  Gibbons.'] 

But  it  is  said,  that  the  injunction  issued  in  New  York  must 
be  a  statutory  injunction.  This  question  cannot  come  up  under 
this  demurrer,  for  we  do  allege  in  the  declaration,  that  it  is  issued 
under  colour  of  these  Jaws,  and  on  a  demurrer  the  allegations  in 
the  declaration  are  to  be  taken  as  true.  But  if  these  laws  were 
judicially  before  the  court,  they  would  be  sufficient  to  support 
the  allegations  of  this  bill.  This  injunction,  it  is  said,  did  not 
issue  by  virtue  of  the  laws  of  Now  York.  I  contend  it  does; 
because  without  these  laws  it  could  not  have  been  issued.  It  is 
said,  the  state  of  New  York  never  passed  any  act  asserting  these 


NOVEMBER  TEEM,  1822.  297 

Gibbons  v.  Ogden. 

claims  to  our  waters;  but  if  the  acts  do  not  claim,  the  chancel- 
lor, by  the  construction  he  gives  them,  does  make  these  acts  of 
New  York  claim  and  cover  these  waters.  It  is  the  first  order  of 
which  we  complain,  and  not  the  second.  If  the  first  order  issued 
under  the  sanction  of  Colonel  Ogden,  it  is  sufficient  for  our  pur- 
pose, and  it  is  not  material  as  to  the  second. 

KIRKPATRICK  C.  J.  This  is  an  action  on  the  case,  founded 
upon  what  is  commonly  called  the  steam-boat  law,  for  enjoining 
and  restraining  the  plaintiff  from  navigating  the  waters  between 
the  state  of  New  Jersey  and  the  state  of  New  York,  with  his 
steam-boat.  To  the  declaration  of  the  plaintiff,  the  defendant 
has  demurred  specially,  and  for  causes  of  demurrer  has  assigned, 
in  substance,  the  six  following: 

1.  That  it  is  not  averred  in  the  declaration,  that  the  cause  of 
action  accrued  after  the  passing  of  the  act. 

2.  That  the  cause  of  action  is  in  its  nature  local;  that  the 
declaration  lays  the  venue  in  the  county  of  Essex,  and  yet  has 
shewn  no  cause  of  action  arising  there,  nor  made  any  sufficient 
averment  to  maintain  his  suit  there. 

3.  That  the  declaration  charges  the  defendant  with  acts  done 
in  the  waters  lying  between  the  ancient  shores  of  the  two  states, 
which  waters  are  partly  within  the  territory  of  New  York,  and 
partly  within  the  territory  of  New  Jersey,  without  averring  or 
setting  forth  any  act  done  in  either  of  the  said  states  in  particu- 
lar, so  that  the  defendant  cannot  plead  with  safety. 

4.  That  the  injunction  and  order  of  the  Court  of  Chancery 
of  New  York,  stated  in  the  declaration,  respect  the  waters  of  the 
bay  of  New  York  only;  that  these  waters  do  not  lie  between  the 
ancient  shores  of  the  two  states,  and  therefore  are  not  within 
the  view  of  the  act  upon  which  the  action  is  founded. 

5.  That  the  declaration,  as  the  only  ground  of  action,  charges 
the  defendant  with  certain  acts  and  things  done  in  the  state  of 
New  York,  by  virtue  and  in  pursuance  of  certain  orders,  decrees, 
and  judicial  proceedings  in  the  Court  of  Chancery  there,  upon  a 
subject  matter  within  its  cognizance  and  jurisdiction,  and  that, 
therefore,  the  defendant  hath  no  need,  nor  can  he  be  put,  to 
answer. 

6.  That  the  action  is  grounded  upon  certain  facts,  records, 
and  judicial  proceedings  of  the  state  of  New  York,  and  yet,  that 


298  NEW  JERSEY  SUPREME  COURT. 

Gibbons  v.  Ogden. 

the  declaration  does  not  set  them  forth  with  such  certainty  and 
precision  as  that  the  defendant  can  safely  plead. 

All  these  causes,  except  the  fifth,  go  to  matters  of  form,  and 
to  me  appear  to  be  insufficient  to  bar  the  plaintiff;  for  First. 
The  act  upon  which  the  suit  is  founded  is  a  public  act,  and  the 
court  will  take  notice  of  it,  and  of  the  time  it  was  passed,  with- 
out recital  or  averment.  It  is,  therefore,  sufficient  that  the  en- 
joining is  laid  to  be  after  it  went  into  operation,  without  specially 
averring  that  it  was  so.  Secondly.  The  action  is  not  in  its  nature 
local,  but  transitory.  Even  a  direct  act  of  violence  done  in  the  state 
of  New  York,  if  it  does  not  respect  the  realty,  may  be  laid  here. 
The  case  of  Flatt  et  al.  v.  Abrahams  and  Roff,  2  South.  Rep.  544, 
was  trespass  for  running  foul  of  the  plaintiff's  schooner  and  sink- 
ing her  near  Governor's  Island,  in  the  bay  of  New  York;  and 
yet  the  venue  was  laid  at  Newark,  in  the  county  of  Essex,  and 
the  action  was  maintained  here,  and  tried  upon  that  venue.  It  is 
a  general  principle,  that  if  a  thing  be  done  out  of  the  realm  which 
is  ground  of  a  personal  action,  the  action  may  be  brought  in  any 
county  within  the  realm;  and  if,  from  the  nature  of  the  trans- 
action, or  the  date  of  the  contract,  it  becomes  necessary  to  state 
the  place  where  it  was  done  truly,  it  shall  be  so  stated,  but  then,  in 
order  to  give  a  venue,  that  place  shall  be  alleged  to  be  at  some 
place  certain  in  the  county  where  the  venue  is  laid ;  and  this 
allegation  is  not  traversable;  it  is  a  fiction  introduced  for  the  fur- 
therance of  justice,  manifestly  not  true  in  itself,  but  necessary  as 
matter  of  form.  This  principle  is  established  in  the  case  of 
Roberts  v.  Harnaze,  Salk.  660,  and  in  the  case  of  Mostyn  v.  Fab- 
rigus,  Cowp.  180.  Besides,  there  is  no  need  of  fiction  in  this 
case,  for  the  plaintiff  is  alleged  to  be  a  citizen  of  New  Jersey, 
residing  at  Elizabeth  Town,  in  the  county  of  Essex.  The  restraint 
•was  put  upon  him  there;  the  damage  was  sustained  by  him 
there;  and  the  means  or  instrument  of  restraint  being  brought 
from  the  state  of  New  York  does  not  alter  the  case.  The  venue, 
therefore,  without  any  fiction,  must  have  been  there.  Thirdly. 
The  act  upon  which  this  action  is  founded  goes  upon  the  princi- 
ple, that  we  have  a  right  to  navigate  all  the  waters  lying  between 
the  ancient  shores  of  these  two  states ;  and  it  is  expressly  aver- 
red in  the  declaration,  that  the  waters  of  the  bay  of  New  York, 
which  the  plaintiff  was  restrained  from  navigating,  do  lie  between 


NOVEMBER  TERM,  1822  299 

Gibbons  v.  Ogden. 

those  ancient  shores.  In  an  action  upon  this  act,  therefore,  it 
cannot  be  necessary  for  the  plaintiff  to  go  further,  and  to  state 
what  part  of  these  waters  is  claimed  to  be  within  the  territory 
and  jurisdiction  of  the  state  of  New  Jersey,  and  what  within  the 
territory  and  jurisdiction  of  the  state  of  New  York;  for,  in  the 
contemplation  of  the  act,  that  is  an  immaterial  circumstance.  If 
it  was  material  for  the  defendant  to  bring  up  that  matter,  or  if  he 
would  found  a  defence  upon  it,  he  ought  to  have  done  so  by 
pleading.  Fourthly.  Though  it  should  be  true,  that  the  waters  of 
the  bay  of  New  York  are  no  part  of  the  waters  lying  between 
the  ancient  shores  of  the  two  states,  and  that,  therefore,  the 
enjoining  and  restraining  of  the  plaintiff  from  navigating  those 
waters,  are  not  within  the  words  of  the  act,  yet  inasmuch  as  they 
are  averred  in  the  declaration,  to  lie  between  these  shores,  the 
question  becomes  a  matter  of  fact,  to  be  tried  by  a  jury,  and 
cannot  be  determined  by  the  court  upon  demurrer.  Until  that 
matter  be  tried,  therefore,  it  must  be  taken  upon  the  strength  of 
the  averment  in  the  declaration,  that  the  defendant  did  enjoin  and 
restrain  the  plaintiff  from  navigating  the  waters  described  in  the 
act,  that  is  to  say,  the  waters  lying  between  the  ancient  shores  of 
these  two  states.  And  as  to  the  sixth  cause,  it  is  to  be  observed, 
that  the  restraint  is  the  injury  complained  of,  and  that  the  pro- 
ceedings of  the  Court  of  Chancery  in  New  York  are  but  the 
inducement,  and  therefore  not  necessary  to  be  set  out  specifi- 
cally :  and  that  even  if  that  were  necessary,  it  is  sufficiently  done. 
It  certainly  could  not  be  incumbent  on  the  plaintiff  to  recite  them 
verbatim,  or  to  give  the  tenor  of  them.  This  would  be  contrary 
to  all  the  rules  of  pleading.  As  to  these  causes,  therefore,  which 
go  to  mere  matters  of  form,  I  think,  as  I  before  said,  that  they 
are  not  sufficient  to  bar  the  plaintiff.  But,  as  to  the  fifth  cause. 
Though  from  the  reasons  which  I  have  stated  in  the  case  of 
Livingston  v.  Gibbons,  in  this  term,  I  should  incline  to  the  opin- 
ion, that  no  action  can  be  maintained  upon  the  case  stated  in 
this  declaration  ;  yet  from  a  real  diffidence  in  my  own  judgment 
upon  this  question,  especially  when  set  in  opposition  to  that  of 
the  chancellor,  and  from  a  full  persuasion  that  it  will  be  better 
for  both  parties  to  let  the  judgment  be  entered  for  the  plaintiff 
here,  and  the  case  be  carried  up,  by  appeal,  to  a  superior  judi- 
catory,  to  which  great  constitutional  questions  of  this  kind  ulti- 
mately belong,  and  which  have  the  power  of  putting  them  finally 


300  NEW  JERSEY  SUPREME  COURT. 

Burroughs  v.  Condit. 

to  rest,  I  have  thought  it  safest  and  best,  upon  the  whole,  to  say, 
that  the  demurrer  must  be  overruled. 

FORD  J.  concurred. 

ROSSELL  J.  dissented.  . 

Demurrer  overruled. 

See  later  decision,  3  Hal.  288. 


SAMUEL  BURROUGHS.  SUSAN  MOULIN,  PHEBE  BURROUGHS,  and 
MATILDA  BURROUGHS  against  SILAS  CONDIT. 

1.  Under  the  act  of  29th  January,  1817,  to  prevent  the  fraudulent  confession 
of  judgments,  "  the  affidavit  to  be  produced  to  the  judge  before  whom  the  judg- 
ment is  confessed,  need  not  state  the  true  consideration  of  the  bond."     It  is  suf- 
ficient if  it  state  that  the  true  cause  of  action  is  the  bond,  &.c. 

2.  It  is  not  necessary  that  the  bond  and  warrant  of  attorney,  to  confess  judg- 
ment, should  be  given  at  one  and  the  same  time,  and  to  one  and  the  same  per- 
son.    It  will  not  be  error  though  they  were  given  to  different  persons  and  at 
different  times. 

3.  It  is  not  necessary  that  it  should  appear  upon  the  record,  that  the  bond 
and  warrant  of  attorney  were  produced  before  the  judge  at  the  time  of  entering 
the  judgment. 

4.  It  is  not  necessary  that  the  warrant  of  attorney  should  be  directed  to  any 
attorney  in  particular.     It  is  sufficient  if  it  is  directed  only  generally  to  any 
citizen  of  New  Jersey. 

This  was  a  writ  of  error  to  the  Common  Pleas  of  the  county 
of  Morris,  brought  to  reverse  a  judgment  which  had  been  entered 
in  that  court,  under  the  act  "directing  the  mode  of  entering 
judgments  upon  bonds,  with  warrants  of  attorney,  to  confess 
judgments,"  passed  the  9th  March,  1798.  Pat.  N.  J.  L.  454. 

The  bond  upon  which  the  judgment  was  entered,  was  dated 
the  30th  April,  1817,  and  was  given  by  the  plaintiffs  in  error, 
S.  Burroughs,  S.  Moulin,  P.  Burroughs,  and  M.  Burroughs,  to 
Charles  Ford,  for  the  sum  of  31000,  payable  in  five  equal  annual 
instalments  of  $200  each :  and  was  on  the  14th  of  May,  1818, 
assigned  to  Mahlon  F.  Dickerson,  and  by  him  assigned  on  the 
17th  of  June,  1818,  to  Silas  Condit,  the  defendant  in  error. 

The  warrant  of  attorney,  by  virtue  of  which  the  judgment  was 
confessed,  bore  date  on  the  27th  of  June,  1818,  and  was  directed 
"  to  any  attorney  of  any  court  of  record  in  the  state  of  New 
Jersey,"  (without  naming  anyone  in  particular)  and  authorized 
such  attorney  to  confess  a  judgment  to  Silas  Condit,  on  the  said 
bond,  which  had  been  assigned  to  him/ 

Silas  Condit,  at  the  time  the  judgment  was  confessed,  pro- 


NOVEMBER  TERM,  1822.  301 

Burroughs  v.  Condit. 

duced  before  the  court  an  affidavit  made  by  himself  in  conformity 
to  the  first  section  of  the  "act  to  prevent  the  fraudulent  confes- 
sion of  judgments,"  passed  January  29th,  1817,  stating,  "  that 
the  true  cause  of  action "  was  a  writing  obligatory  for  $1000, 
made  by  the  defendant  to  Charles  Ford,  and  assigned  by  him  to 
Mahlon  F.  Dickerson,  and  by  the  said  "Mahlon  F.  Dickerson 
assigned  to  the  said  Silas  Condit;  that  there  was  bona  fide  due 
to  him  thereon,  the  sum  of  $250,"  and  in  the  usual  form. 
The  judgment  was  signed  as  of  the  9th  of  October,  1816. 

Miller  and  Scudder,  relied  upon  the  following  errors  for  tho 
reversal  of  this  judgment. 

1.  That  the  affidavit  did  not  set  out  the  true  cause  of  action ; 
that  an  affidavit  stating  only,  "that  the  bond  was  the  true  cause 
of  action,  was  not  a  compliance  with  the  meaning  of  the  act  of 
the  29th  January,  1817,  which  was  intended  to  prevent  fraud  ; 
and  that  the  spirit  of  that  act  would  be  evaded,  if  it  was  suffi- 
cient to  state  that  the  bond  was  the  true  cause  of  action ;"  the 
affidavit,  they  contended,  should  have  disclosed  tho  considera- 
tion of  the  bond. 

2.  Because  the  bond  and  warrant  of  attorney  were  given  at 
different  times,  and  to  different  persons.     The  statute,  they  said, 
only  authorized  the  entry  of  a  judgment  upon  bonds  and  war- 
rants of  attorney  which  are  given  at  one  and  the  same  time. 
The  words  of  the  statute  are,  "  that  in  all  cases  where  a  bond  or 
other  obligation  is  given  for  the  paj'ment  of  money  only,  together 
with  a  warrant  under  hand  and  seal,  to  any  attorney  at  law,  or 
any  other  person,  &c."     Pat  N.  J.  L.  454.     The  word  together, 
meant  simultaneously,  cotemporaneously.     But  hero  the  bond 
was  dated  in  1817,  and  the  warrant  in  1818 ;  the  bond  was  given 
to  one  person,  and  the  warrant  to  another. 

3.  Because  it  did  not  appear  on  the  record,  that  the  original 
bond  and  warrant  of  attorney  were  produced  before  the  judge,  at 
the  time  of  entering  the  judgment.    And  according  to  the  maxim 
quod  non  apparet  non  est,  it  must  be  presumed  that  the  bond  and 
warrant  of  attorney  were  not  produced  before  the  judge. 

4.  That  the  warrant  of  attorney  was  not  directed  to  any  at- 
torney, by  name. 

Frelinghuysen,  contra. 


302  NEW  JERSEY  SUPREME  COURT. 


Burroughs  v.  Condit. 
Per  curiam.    Let  the  judgment  be  affirmed. 

KIRKPATRICK  C.  J.  The  affidavit  discloses  the  true  cause  of 
the  action,  viz.  the  agreement  of  the  party  to  pay.  The  statute 
of  29th  January,  1817,  does  not  require  the  affidavit  to  set  forth 
the  true  consideration,  but  only  the  true  cause  of  action.  This 
statute  is  now  repealed  by  the  act  of  24th  of  February,  1820. 
By  this  latter  act,  the  true  consideration  of  the  bond  is  required 
to  bo  stated,  but  not  by  the  former. 

FORD  J.  There  is  a  statute  which  requires  that  an  affidavit 
shall  be  made  of  the  cause  of  action,  in  order  to  hold  to  bail. 
Pat.  N.  J.  L.  348.  That  statute  is  always  satisfied,  that  by 
stating  in  the  affidavit,  that  the  cause  of  action  is  a  bond  of  a 
certain  date.  I  think,  therefore,  that  the  affidavit  in  this  case 
is  sufficient. 

CITBD  IN  Ely  v.  Pbrkhurst,  1  Dutch.  194.     Clapp.  v.  Ely,  3  Dutch.  555, 566. 


CASES   DETERMINED 


IN  THE 


STATE    OF    NEW   JERSEY, 

COMMENCING  AT  APRIL  TERM,  1796. 


[The  Reporter  having  been  favoured  by  his  friend  Richard  S.  Coxe,  esq ,  with 
a  number  of  valuable  cases,  decided  in  the  time  of  Chief  Justice  Kinsey,  has 
thought  that  he  should  be  rendering  a  service  to  the  public,  by  publishing  the 
most  important  of  them.  With  this  view,  he  has  inserted  the  following  in  this 
volume,  and  should  the  design  meet  with  approbation,  he  will  continue  to  pub- 
lish in  the  subsequent  volumes  of  these  reports,  such  other  of  the  cases  furnished 
him  by  that  gentleman,  as  shall  be  deemed  most  important;  and  by  so  doing, 
he  will  be  enabled  to  supply  in  a  great  measure  the  chasm  which  intervenes 
between  the  valuable  reports  of  Mr.  Coxe,  and  those  of  his  honour  Judge 
Pennington,  and  thereby  complete  the  series  of  decisions  of  the  Supreme  Court, 
down  to  the  present  time.] 


THE  STATE  against  HUNT. 

OK  CEBTIOEARI. 

Where  the  Sessions  have  made  a  return  to  a  certiorari  which  was  adjudged 
incomplete,  and  another  return  made,  the  court  will  not  refer  to  the  first  in  order 
to  settle  any  ambiguity  in  the  second ;  but  a  rule  may  be  taken  upon  the  Ses- 
sions to  amend  their  second  return. 

The  Sessions  had  made  a  former  return  to  this  writ,  which 
the  court  had  held  incomplete,  and  ordered  another,  which  was 
accordingly  made.  Upon  this  second  return,  the  indictment 
against  the  defendant,  a  plea  of  guilty,  and  the  judgment  of  the 
court  below  assessing  a  fine  upon  him,  were  brought  up ;  but  it 
did  not  certainly  appear  whether  the  confession  had  been  made, 
and  the  fine  imposed  before  or  after  the  certiorari  was  served  on 
the  justices  of  the  Sessions. 

(808) 


304  NEW  JERSEY  SUPREME  COURT. 

State  v.  Hunt. 

The  Attorney- General  and  Leake,  had  moved  the  court  to  quash 
the  plea  of  the  defendant  below,  and  the  judgment  of  the  Sessions 
assessing  the  fine,  on  the  ground  that  the  certiorari  was  presented 
to  the  court  below,  before  the  confession  was  recorded. 

They  argued  that  the  authority  of  the  Sessions,  to  proceed  in 
the  case,  was  superseded  by  the  certiorari  from  the  Supremo 
Court,  and  that  everything  subsequently  done  was  void.  Fits 
William's  case,  Cro.  El.  915.  1  Bac.  Abr.  570-1.  2  Hawk.  418. 
c.  27,  sec.  64.  12  Mod.  384.  2  Com.  Dig.  196,  "Certiorari,"  letter 
E.  Cross  v.  Smith.  12  Mod.  643. 

H.  Stockton,  for  the  defendant,  admitted  there  was  no  question 
as  to  the  law,  the  cases  cited  were  not  disputed ;  but  he  contended 
that  it  did  not  appear  from  the  return,  at  what  time  the  certiorari 
was  presented.  There  was  nothing  before  the  court,  from  which 
they  could  presume  that  the  certiorari  was  delivered  before  the 
plea  or  judgment,  and  he  therefore  prayed  that  a  procedendo  might 
issue  upon  the  authority  of  the  case  of  Hex  v.  Gwynne.  2  Burr.  749. 

The  Attorney- General  admitted,  that  upon  this  second  return  it 
did  not  appear  at  what  stage  of  the  proceedings  the  indictment 
was  removed  by  the  certiorari.  He  offered,  in  order  to  supply 
this  defect  in  the  return,  to  read  the  return  which  had  been  first 
filed  to  the  certiorari,  from  which  it  was  apparent  that  it  was 
presented  before  the  confession. 

This  was  objected  to  on  behalf  of  the  defendant,  and  it  was 
urged  that  the  first  return  being  adjudged  incomplete,  became 
an  absolute  nullity;  that  another  return  had  been  actually  made 
by  the  sessions,  which  was  now  before  the  court,  and  which  alone 
could  bo  resorted  to  for  the  facts. 

THE  COURT  were  of  this  opionion,  and  refused  to  hear  the  first 
return  read,  considering  it  as  a  nullity. 

The  Attorney- General  then  applied  for  permission  to  enter  a 
rule  upon  the  Sessions,  requiring  them  to  amend  their  return  in 
this  particular,  by  certifying  the  time  when,  &c.  which  was 
opposed  by  Stockton,  on  the  ground  that  it  was  too  late,  this 
return  having  been  filed  so  long  ago  as  September  term  last. 

Per  curiam.  If  any  fact  of  importance  in  the  case  appeal's 
doubtful  on  the  return,  the  Attorney-General  ought  to  have  leave 
to  suggest  it  on  the  record,  and  to  have  the  ambiguity  removed. 

Rule  granted. 


APEIL  TERM,  1796.  305 


Greenway  v.  Dare. 


THE  STATE  against  FISLEB. 

The  answers  to  the  interrogations,  in  case  of  an  attachment  for  a  contempt, 
must  be  delivered  ore  tenus. 

FISLER  in  this  case,  being  called  upon  to  answer  interrogato- 
ries upon  an  attachment  for  contempt,  a  question  arose  whether 
he  should  make  his  answers  ore  tenus  or  in  writing. 

Per  curiam.    The  answers  must  be  made  ore  tenus. 

The  defendant  being  then  called  up  and  sworn,  the  interroga- 
tories were  severally  proposed  to  him,  and  he  answered  them 
from  a  printed  paper,  *  which  he  held  in  his  hand,  containing  an- 
swers to  each  of  the  interrogatories ;  afterwards  he  signed  tho 
printed  answers,  and  they  were  annexed  to  the  interrogatory. 


GREENWAY  against  DARE. 

A  scire  facias  is  a  new  and  independent  action,  and  a  writ  of  error  removing  the 
record  in  the  original  action,  will  not  remove  the  proceedings  upon  the  scire  facias. 

GREENWAY  brought  an  action  of  debt  against  Dare,  in  the  In- 
ferior Court  of  Common  Pleas,  for  Cape  May  county.  The 
defendant  pleaded  payment,  and  under  the  act  of  assembly, 
authorizing  offsets,  (Allison,  66)  had  brought  forward  his  account 
against  the  plaintiff,  and  a  balance  appearing  in  his  favour,  a  ver- 
dict was  found  for  him,  and  the  jury  certified  the  amount  as  due 
him.  Under  the  act  of  assembly,  a  scire  facias  was  brought  in 
the  same  court  for  the  recovery  of  this  sum,  and  upon  two  nihils 
being  returned,  judgment  was  entered  by  default. 

A  writ  of  error  was  sued  out  by  Greenway,  to  remove  tho 
plaint  and  proceedings  in  the  suit  "  wherein  Greenway  was 
plaintiff,  and  Bare  defendant."  On  the  return  of  this  writ,  the 
record  in  both  cases  was  certified,  as  well  the  proceedings  in  the 
first  action  as  on  Dare's  scire  facias.  Errors  had  been  assigned 
on  both  judgments,  and  in  nullo  est  erratum  was  pleaded. 

JR.  Stockton,  for  Dare,  objected  to  the  examination  of  the  errors 
assigned  on  the  proceedings  on  the  scire  facias,  insisting  that  by 

*  The  counsel  had  the  answers  printed,  because  the  defendant  was  incapable 
of  reading  manuscript,  ut  audivi. 

VOL.  I.  U 


306  NEW  JERSEY  SUPREME  COURT. 

Qreenway  v.  Dare. 

this  writ  of  error,  the  only  record  which  could  be  brought  before 
the  court  was  that  in  the  case  between  Greenway,  plaintiff,  and 
Dare,  defendant;  and  that  upon  the  scire  facias  the  situation  of 
the  parties  was  reversed. 

JJeake,  contra,  contended  that  the  description  of  the  plaintiff 
and  defendant,  attached  to  the  names  of  the  parties  in  the  writ 
of  error,  would  not  confine  it  to  the  proceedings;  that  the  par- 
ties on  the  scire  facias  were  the  same,  and  the  proceedings  upon 
it  were  a  part  and  continuation  of  the  first  suit,  and  within  the 
terms  as  well  as  spirit  of  the  direction  of  the  writ  of  error,  which 
called  for  not  only  what  might  strictly  be  called  the  record  in 
the  suit  referred  to,  but  "  all  things  touching  and  concerning 
the  same." 

He  contended  further,  that  the  objection  could  not  be  taken 
at  this  stage  of  the  proceedings.  The  defendant,  in  error,  by 
pleading  in  nullo  est  erratum,  replies  generally  to  the  assignment, 
and  waives  any  exceptions  to  the  propriety  of  the  return,  but 
admits  his  liability  to  answer.  2  Bac.  Abr.  471,  472. 

The  scire  facias  authorized  by  the  act  of  assembly,  (Allinson, 
66-7)  is  clearly  a  continuance  of  the  first  action  and  not  a  new 
proceeding.  This  is  evident  from  the  language  of  the  law :  it  is 
a  carrying  on  of  the  same  suit,  and  there  is  but  one  judgment. 

Per  curiam.  Every  scire  facias  is  a  new  and  independent  ac- 
tion, referring  to  the  former  proceedings,  but  wholly  distinct 
from  them.*  This  writ  of  error  can  legally  remove  nothing  but 
the  record  in  the  original  suit;  every  thing  else,  from  the  issu- 
ing of  the  scire  facias  to  the  judgment  upon  it,  comes  before  us 
in  a  raanne'r  which  excludes  it  from  our  consideration ;  it  is 
coram  non  judice.  Wo  think  that  we  have  no  jurisdiction  over 
the  record  and  proceedings  in  this  second  suit,  and  if  so,  no  con- 
sent or  admission  will  confer  jurisdiction.  You  must  confine 
yourself  to  the  errors,  if  any,  in  the  first  suit. 

Judgment  was  affirmed. 

*Eee  2  Swift' t  Svttem.  172.  1  Term  Rep.  268.  2  Ib.  46.  6  John.  Rep.  106, 
and  Bingh.  on  Judgments  and  Execution*  123,  for  the  nature  of  this  writ. 


MAY  TERM,  1796.  307 


Richards  v.  Drinker. 


[MAY  TERM,  1796.] 


RICHARDS  against  DRINKER,  SALTAR,  and  others. 

In  an  action  of  debt  upon  an  award,  an  award  made  by  the  arbitrators,  though 
liable  to  legal  objections,  is  admissible  in  evidence;  its  operation  must  be  deter- 
mined in  another  mode. 

Upon  a  plea  of  no  award,  the  defendant  is  not  permitted  to  introduce  evidence 
to  prove  the  illegality  of  the  award. 

Under  a  plea  of  no  award,  evidence  of  performance  is  inadmissible. 

Whenever  the  plaintiff  declares  upon  an  award  which  is  absolutely  void,  he 
cannot  have  judgment  upon  it,  though  the  defendant  may  have  pleaded  erro- 
neously. 

When  the  arbitrators  expressly  decline  deciding  upon  some  of  the  matters 
submitted,  their  award  is  void. 

This  was  an  action  of  debt,  brought  on  a  bond  dated  the  23d 
day  of  January,  1793,  in  the  penalty  of  £1000,  conditioned  for 
the  performance  of  an  award.  Saltar  alone  was  taken.  The 
defendant,  after  oyer,  pleaded  that  no  award  was  made. 

The  bond  was  proved,  by  which  the  parties  submitted  "all 
and  all  manner  of  action  and  actions,  cause  and  causes  of  action, 
suits,  bills,  bonds,  sum  and  sums  of  money,  trespasses,  accounts, 
and  demands  whatsoever,  at  any  time  heretofore  made,  done, 
•ommitted,  or  depending  by  or  between  the  parties." 

January  25th,  the  five  arbitrators,  after  hearing  the  parties, 
made  their  award,  by  which  they  determined — 

1.  That  all  actions  or  suits  cease  and  determine. 

2.  That  all  the  wood  now  standing  on  a  survey  which  the 
Atsion  Company  hold  under  Josiah  Foster,  on  the  southerly  side 
of  Egg  Harbour  road,  adjoining  forty-seven  acres  surveyed  for, 
and  belonging  to  Richards ;  and  also  the  wood  on  fifty  acres,  to 
be  laid  off  from  a  survey  made  for  Atsion  Company,  on  the 
northwardly  side  of  the  said  road,  adjoining  to  a  survey  of  the 
Earls,  beginning  at  a  pine  tree,  by  the  side  of  the  said  road, 
marked  H  D,  and  to  be  laid  off  in  as  compact  a  body  from  said 
beginning  as  the  shape  of  the  survey  will  admit  of. 

3.  That  the  right  of  Richards  to  the  ore  within  the  reputed 
and  established  bounds  of  Estill's  surveys,  at  the  time  he  con- 
veyed to  Read,  is  good,  and  no  survey  made,  or  to  be  made, 
within  Estill's  lines,  can  invalidate  or  destroy  the  same. 

4.  The  Atsion  Company  shall  have  a  free  and  uninterrupted 
passage  up  and  down  Atsion  river  with  their  boats,  on  their  as- 


308  NEW  JERSEY  SUPREME  COURT. 

Richards  v.  Drinker. 

sisting  Richards,  and  being  at  an  equal  expense  in  erecting,  and 
from  time  to  time  in  repairing  such  banks  and  dams  as  will  pre- 
vent the  water,  when  they  draw  for  their  own  use,  from  over- 
flowing the  beds  of  ore,  and  preventing  the  raising  and  carting 
the  ore.  If  the  company  shall  neglect,  Richards  may  cause  the 
same  to  be  done,  and  the  company  shall  pay  a  moiety,  subject 
to  a  reasonable  assessment  of  indifferent  men,  to  be  chosen  by 
the  parties. 

5.  They  award,  that  the  Atsion  Company  shall  pay  to  Rich- 
ards the  sum  of  £5  10s.  being  the  expenses  of  a  former  arbitra- 
tion, and  further  costs  accrued  respecting  the  premises,  exclu- 
sive of  the  book  accounts  of  the  parties. 

There  was  no  replication  put  in  to  the  defendant's  plea,  and, 
on  the  trial,  the  counsel  for  the  plaintiff  orally  assigned  the  breach 
in  the  fifth  article  of  the  award,  in  the  failure  on  the  part  of  tho 
defendants  in  paying  the  £5  10s.  which  was  there  directed. 

Woodruff,  (attorney-general)  Leake  and  A.  Ogden,  against  the 
reading  the  award,  for  the  defendant,  took  several  exceptions  to 
the  award. 

1.  The  submission  embraces  a  great  variety  of  matters.     Ac- 
counts are  particularly  specified,  and  no  award  is  made  as  to 
them;  hence  it  is  not  conformable  to  the  submission.     In  fact  the 
fifth  section  of  the  award  expressly  excepts  the  book  accounts  of 
the  parties.  This  is  clearly  illegal.  In  Kyd  on  Awards  114,  {Phil, 
edit  171)  it  is  expressly  laid  down,  "  that  the  award  must  be 
according  to  the  submission,  that  is,  it  must  comprehend  every 
thing  submitted,  and  must  not  be  of  parcel  only.     The  purpose 
of  the  parties  in  submitting  is,  to  have  a  final  detcrminatio'n  of 
every  matter  comprehended  within  their  submission  :  that  pur- 
pose is  not  obtained  when  the  award  only  comprehends  a  part." 
The  replication  of  the  plaintiff  ought  to  shew  that  the  award 
was  made  in  all  pofnts  pursuant  to  the  authority  of  tho  arbitra- 
tors.    1  Com.  Dig.  357,  Arbitrament  I.  6. 

2.  The  second  item  of  tho  award  is  illegal  and  void,  in  award- 
ing all  the  wood  on  Foster's  survey,  and  fifty  acres  in  another 
survey,  because  uncertain,  so  as  not  to  admit  of  performance. 

Under  this  head,  the  counsel  contended — 1.  It  does  not  direct 
who  shall  set  off  the  wood,  or  the  fifty  acres ;  the  party  cannot 
be  guilty  of  a  breach,  for  he  cannot  know  who  is  to  do  it. 


MAY  TEEM,  1796.  309 


Richards  v.  Drinker. 


2.  It  is  not  shewn  to  whom  it  is  to  be  set  off:  the  award  in 
this  particular  is  utterly  incomprehensible. 

3.  The  fifty  acres  are  to  begin  at  a  pine  tree :  it  is  not  stated 
where  this  tree  stands,  on  which  side  of  the  land,  nor  in  what 
direction  the  lines  are  to  be  run. 

4.  No  time  is  prescribed  within  which  it  is  to  be  set  off;  and 
no  request  has  been  alleged ;  nor  does  it  even  appear  what  set- 
ling  off  means. 

5.  It  does  not  appear  what  estate  is  to  be  had  in  the  land  thus 
set  off,  whether  in  fee  simple,  fee  tail,  &c. 

All  these  objections  lie  to  this  part  of  the  award,  and  it  is 
impossible  to  ascertain  the  meaning  of  the  arbitrators.  1  Burns' 
Just.  131.  Wood's  Inst.  526.  It  ought  to  make  an  end  of  all 
controversies  submitted.  In  Bedamv.  Clarkson,  1  Ld.  Ray.  123, 
the  award  was  held  void  because  it  ordered  quoddam  scriptum 
obligatorium,  without  specifying  date  or  penalty  to  be  delivered 
up.  In  Bacon  v.  Dubarry,  Ib.  246,  the  court  held  the  award 
void,  because  it  ordered  the  payment  of  a  sum  of  money,  with- 
out stating  that  the  arbitrator  had  found  that  the  party  was  so 
much  indebted.  Noy's  Max.  110,  goes  to  the  same  point. 

3.  The  fourth  item  in  the  award  is  void.     It  is  there  ordered, 
that  in  case  the  company  shall  neglect  or  refuse  to  assist  in  re- 
pairing or  erecting  the  necessary  banks  and  dams,  the  plaintiff 
may  do  it,  and  the  company  must  be  subject  to  a  reasonable 
assessment,  to  be  made  by  indifferent  persons  chosen  by  the 
parties.     This  lasts  forever;  it  provides  for  the  settlement  of 
future  referees,  whereas  the  submission  embraced  only  those 
matters  which  were  then  passed.     Kyd  92. 

Another  objection  may  be  urged  to  this  part  of  the  award. 
It  directs  the  assessment  to  be  made  by  indifferent  persons, 
without. naming  them;  this  uncertainty  is  fatal.  Again,  if  these 
matters  were  within  the  submission,  here  is  a  delegation  of  their 
authority  by  the  arbitrators,  which  is  illegal  and  in  manifest 
contravention  of  their  duty ;  or  it  was  not  within  the  submission, 
and  then  clearly  void. 

4.  The  fifth  item  in  the  award  is  equally  invalid.     The  costs 
of  a  former  arbitration  were  not  within  the  submission.     Every 
tribunal  before  which  a  cause  comes  for  adjudication  has  a  right, 
and  ought  to  decide,  not  only  upon  the  subject  matter  of  contro- 
versy but  upon  all  the  collateral  points  necessarily  connected 


310  NEW  JERSEY  SUPREME  COURT. 

Richards  v.  Drinker. 

with  it.  The  former  arbitrators  had  a  right  to  adjudicate  upon 
the  subject  of  these  costs,  but  the  arbitrators  in  this  cause  had 
none.  They  exceeded  their  authority  in  intermeddling  with  a 
business  distinctly  and  solely  cognizable  by  another  tribunal,  and 
have  vitiated  their  award. 

Not  only  do  they  thus  interfere  improperly  in  a  matter  not  sub- 
mitted to  their  consideration,  and  thus  exceed  the  authority  dele- 
gated to  them,  but  they  refuse  to  include,  and  expressly  exclude 
other  concerns  upon  which  it  was  their  duty  to  decide.  They  do  not 
adjudicate  upon  the  accounts  of  the  parties,  and  thus  have  rendered 
their  award  partial,  which  is  another  fatal  objection.  Kyd  114. 

Stockton,  contra,  contended,  that  there  was  no  necessity  for 
going  into  a  particular  answer  to  all  the  objections  that  had 
been  urged  to  the  award.  It  is  sufficient,  according  to  Fox  v. 
Smith,  2  Wils.  267,  that  it  be  good  in  that  part  whereof  the 
broach  is  assigned.  If  that  is  unobjectionable  the  penalty  be- 
comes forfeited  by  a  non-performance.  The  £5  10s.  has  not  been 
paid,  and  this  is  all  that  we  are  called  upon  to  consider.  Addison 
v.  Gray,  Ib.  293,  is  to  the  same  point. 

But  with  regard  to  the  principal  exception  which  has  been 
taken,  which  is  to  the  fifth  item,  it  is  altogether  unfounded.  It 
is  stated,  that  the  costs  of  the  former  arbitration  was  a  subject 
proper  for  the  decision  of  the  first  arbitrators.  This  does  not 
exclude  the  jurisdiction  of  those  by  whom  the  present  award 
has  been  made.  The  former  arbitrators  had  a  legal  right  to 
settle  it,  but  if  they  have  omitted  to  exercise  this  right,  if  the 
subject  remained  in  dispute,  it  does  not  therefore  follow  that  it 
is  never  to  be  brought  to  a  termination.  If  it  was  unsettled,  it 
is  completely  embraced  by  the  broad  language  employed  in  this 
submission.  It  was  held  in  Marks  v.  Marriott,  1  Ld.  Ray.  114, 
that  under  a  submission  of  all  actions,  suits,  debts,  trespasses, 
damages,  and  demands,  the  arbitrators  may  award  the  surrender 
of  the  possession  of  a  house.  The  word  "  demands  "  has  an  ex- 
tensive meaning,  and  if  it  was  held  to  include  real  property, 
even  at  a  time  when  this  kind  of  property  was  not  considered 
as  a  proper  subject  of  arbitration,  much  more  ought  it  to  be 
held  to  include  matters  of  this  nature. 

It  has  been  urged,  that  while  the  arbitrators  have  transcended 
their  power  in  this  particular,  they  have  omitted,  on  the  other 


MAY  TERM,  1796.  311 


Richards  v.  Drinker. 


hand,  to  adjudicate  upon  matters  properly  within  their  cogniza- 
ance.  To  this  objection  it  may  be  replied,  that  the  submission  in 
the  present  case  is  not  special  but  general,  and  therefore  the 
court  will  intend  that  the  accounts  were  not  in  controversy.  Cro. 
Jac.  355.  8  Co.  97.  Wils.  on  Arb.  134.  It  was  not  the  duty  of 
the  arbitrators  to  enter  into  the  consideration  of  accounts  which 
•were  not  brought  under  their  notice  by  the  parties,  and  if  they 
refused  to  decide  upon  matters  legally  within  the  submission, 
and  actually  introduced  by  the  parties,  such  refusal  admits  of 
easy  proof,  and  ought  not  to  rest  upon  strained  intendments. 

It  is  competent,  at  least,*  for  the  party  claiming  under  the 
award  to  demand  proof,  that  the  arbitrators  transcended  the 
bounds  of  duty;  that  they  neglected  to  execute,  or  executed  in 
an  improper  manner,  the  functions  of  their  office.  In  the  absence 
of  all  testimony  impugning  the  propriety  of  their  conduct,  it  must 
be  presumed  correct.  Should  the  court,  however,  require  it,  the 
arbitrators  can  be  examined,  and  they  will  clearly  establish  the 
fact,  that  there  actually  was  no  dispute  between  the  parties,  in 
relation  to  these  accounts.  If  any  ambiguity  appears  on  the  face 
of  the  proceedings  of  the  arbitrators,  this  ambiguity  may  be 
explained  by  evidence  dehors  the  award.  This  doctrine  is  recog- 
nized in  Kyd  138,  (205)  where  many  cases  are  cited  in  corrob- 
oration  of  it.  In  Wtts.  on  Arb.  161,  it  is  said,  "  the  submission 
'is  general ;  the  award  is  said  to  be  de  et  super  pramissis,  and  it 
does  not  appear  that  any  thing  else  was  before  the  arbitrators." 
It  is  plain  that  this  matter  was  submitted,  and  we  have  no  rea- 
son to  presume  there  was  any  other.  Such  appears  to  be  tho 
understanding  of  the  court  in  Ormelade  v.  Coke.  Cro.  Jac.  354. 

Leake  and  Woodruff,  in  reply. 

THE  COURT  overruled  the  objection,  and  permitted  the  award 
to  be  read  to  the  jury. 

By  way  of  defence  to  the  action,  the  defendants  offered  tes- 
timony to  prove  that  the  book  accounts  were  in  controversy,  and 
that  the  arbitrators  did  refuse  or  neglect  to  arbitrate  upon  them. 
The  counsel  urging,  that  if  this  matter  was  proved,  it  established 
the  truth  of  the  plea  of  no  award,  because  it  shewed  that  the 
award  set  up  was  illegal,  and  consequently  a  nullity. 

For  the  plaintiff,  it  was  objected,  that  such  evidence  waa 
inadmissible. 


312  NEW  JERSEY  SUPEEME  COURT. 

Richards  v.  Drinker. 

1.  Because  it  was  testimony  dehors  the  award. 

2.  Because  it  was  a  departure  from  the  plea. 

1.  It  is  clear  law,  that  when  the  parties  voluntarily  submit  their 
differences  to  the  decision  of  arbitrators,  they  cannot  be  relieved 
against  the  award  on  account  of  any  extrinsic  circumstances,  by 
setting  them  up  as  a  defence  to  an  action  on  the  award  or  the  sub- 
mission bond.  He  cannot  give  in  evidence  any  thing  to  impeach  the 
conduct  of  the  arbitrators.    The  award  is  a  determination  by  per- 
sons selected  by  the  parties  with  due  circumspection,  and  no  evi- 
dence can  be  admitted  to  impugn  its  correctness  w^jich  is  drawn 
from  a  foreign  source,    gyd  226,  (327-8).    In  Wills  v.  Maccormick, 
2Wils.  148,  evidence  to  prove  the  partiality  of  the  arbitrators,  was 
refused  in  an  action  of  debt  on  an  award.    On  a  motion  for  a  new 
trial,  the  court  said,  "an  award  is  a  judgment  by  judges  chosen  by 
the  parties  themselves,  and  a  jury,  in  a  special  verdict,  cannot  find 
any  matter  or  fact  dehors  the  award ;  by  parity  of  reason  nothing 
dehors  the  award,  as  partiality  can  be  given  to  them  in  evidence."* 

2.  This  evidence  was  inadmissible  under  the -plea  of  no  award, 
but  is  a  manifest  departure.   The  defendant  has  pleaded,  that  no 
award  was  made ;  an  award  is  produced,  and  the  court  have  pro- 
nounced it  to  be  on  the  face  of  it  legal,  by  permitting  it  to  go  to 
the  jury.     The  defendant  would  now  go  into  a  special  allegation 
of  fact,  and  shew  that  .the  award  is  illegal  because  the  arbitrators 
would  not  decide  upon  all  the  matters  in  controversy.  This  ought 
to  have  been  specially  pleaded,  if  it  amounts  to  a  legal  defence, 
but  we  cannot  be  called  upon,  on  the  present  issue,  to  examine 
the  conduct  of  the  referees.   We  have  proved  the  award,  which 
is  the  only  question  before  the  jury,  and  have  therefore  done  all 
that  the  law  imposes  upon  us.     3  Black,  Com.  310. 

For  the  defendant,  it  was  contended,  that  the  evidence  was 
proper  and  legal.  The  plaintiff  has  declared  upon  the  bond,  the 
defendant  craved  oyer  of  the  condition,  which  appears  to  bo, 
that  the  arbitrators  should  make  an  award  upon  the  premises  or 
the  matters  submitted  to  them.  The  plaintiff  had  sot  out  no 
award  in  his  declaration,  and  the  defendant  pleads  there  was  no 
award.  Under  the  practice  act  of  this  state  no  replication  was 
admissible,  and  the  pleadings  upon  the  roll  end  with  the  plea. 

*See  Veale  v.  Warner,  1  Saund.  327,  n.  3,  where  this  case  is  recognized  by  the 
learned  annotator,  and  considered  as  settled  law. 


MAY  TEEM,  1796.  313 


Richards  v.  Drinker. 


Every  thing  subsequent  to  this  is  done  ore  tenus.  The  plaintiff, 
by  way  of  replication,  has  produced  the  award,  and  proved  it  to 
the  jury,  and  assigned  a  breach.  Under  these  circumstances,  we 
contend,  that  we  are  at  liberty  to  give  in  evidence  any  and  every 
fact  which  tends  to  prove  that  the  paper  thus  shewn  to  the  jury 
is  not  an  award  in  law.  This  is  the  question  before  the  court, 
not  whether  a  paper  has  been  signed  by  the  arbitrators  which 
they  may  have  thought  proper  to  call  an  award,  but  whether 
such  an  instrument  has  been  executed,  as  the  law  will  regard, 
as  a  legal  instrument  binding  upon  the  parties. 

The  point  already  decided  by  the  court  is  not  conclusive  as  to 
this  question.  The  court  has  said,  that  this  is  a  general  submis- 
sion, but  the  ita  quod  ties  the  arbitrators  up  to  settle  all  the  mat- 
ters contained  within  it.  The  intendment  is,  and  the  cases  cited 
by  the  opposite  counsel  on  the  former  question  go  to  prove  this 
position,  that  every  thing  was  settled  of  which  the  arbitrators 
had  notice,  and  this  intendment  is  to  be  supported  until,  like 
every  other  presumption  of  the  law,  it  is  contradicted  by  testi- 
mony. We  do  not  violate  this  principle  by  introducing  testimony 
to  shew  that  this  presumption  fails  in  the  present  case.  We  offer 
to  prove  that  this  is  no  "award  upon  the  premises,"  because  the 
arbitrators  refused  or  omitted  to  settle  a  part  of  the  matters  sub- 
mitted after  notice  and  request. 

Evidence  of  this  kind  cannot  properly  be  said  to  be  dehors 
the  award,  until  its  effect  is  ascertained.  An  objection  of  this 
kind  is  a  begging  of  the  question :  it  assumes  for  its  foundation 
the  very  fact  in  dispute,  by  terming  this  paper  an  award:  The 
fact  offered  to  be  proved  will  shew  that  no  award  has  been  made. 

It  appears,  however,  on  the  face  of  the  submission,  that  the 
accounts  between  the  parties  were  actually  left  to  the  determina- 
tion of  the  arbitrators,  and  it  appears,  upon  the  face  of  the  award, 
that  these  matters  were  left  unsettled.  In  answer  to  this  objec- 
tion it  is  alleged,  that  perhaps  these  accounts  were  not  in  dis- 
pute, a  presumption  in  the  face  of  the  submission,  and  which 
we  offer  to  prove  is  in  direct  contradiction  to  the  fact.  This  evi- 
dence is  in  conformity  with  the  truth,  and  does  not  contradict 
any  averment  in  the  award. 

The  authorities  cited  do  not  come  up  to  this  question.  They 
show  that  no  averment  shall  be  made  to  contradict  what  appears 
on  the  award.  Ormelade  v.  Coke  shews  that  the  defendant  might 


314  NEW  JEESEY  SUPEEME  COUET. 

Richards  v.  Drinker. 

have  pleaded  any  matter  in  avoidance  of  the  award,  and  so  is 
Kyd  116,  (174).  Wills  v.  Maccormick  goes  no  farther  than  to 
shew  that  no  matter  shall  be  given  in  evidence  tending  to  crimi- 
nate the  arbitrators  themselves,  because  it  would  affect  third 
persons,  but  it  does  not  contravene  the  defendant's  right  to  plead 
matter  in  avoidance  of  the  award. 

KINSEY  C.  J.  The  question  is  not,  whether  this  matter  is 
pleadable,  but  whether  you  can  give  it  in  evidence  under  your 
plea  of  no  award. 

Ogden.  We  have  pleaded  no  award,  and  we  offer  to  support  this 
plea  by  proving  a  fact  which  shews  that  no  award  was  made.  In  the 
reason  of  the  thing,  this  evidence  is  not  a  departure.  It  would  have 
been  both  contradictory  and  absurd,  had  we  admitted  in  our  plea 
that  an  award  was  made,  and  then  alleged  matter  shewing  there 
was  no  award.  No  precedent  can  be  found  of  any  such  plea. 

KINSEY  C.  J.  You  might  have  admitted  and  set  out  an  award 
in  fact. 

Ogden.  I  know  of  no  such  distinction;  no  award  in  law  is  no 
award  in  fact.  In  an  action  of  covenant  or  debt  on  a  bond  the 
plea  of  non  est  factum  denies  the  deed,  both  in  law  and  fact.  It 
would  be  altogether  novel  to  admit  a  deed  in  fact,  and  then  plead 
the  special  matter  in  avoidance.  The  manner  of  pleading  in  an 
action  on  an  arbitration  bond  is  concisely  stated  in  Kyd  192,  (280). 
The  plaintiff  declares  as  on  a  common  bond,  and  after  oyer  of 
the  condition,  the  defendant  pleads  no  award ;  the  award  is  ther 
set  out  in  the  replication,  and  the  breach  assigned ;  and  upon 
this  the  whole  question  arises,  as  on  an  original  declaration.  The 
defendant  then  rejoins  no  such  award,  or  he  demurs. 

KINSEY  C.  J.  (without  hearing  a  reply.)  The  practice  act 
makes  no  difference  as  to  this  question ;  it  never  was  understood 
to  have  the  effect  of  altering  the  nature  or  the  consequences  of 
tho^lea  which  might  be  pleaded.  No  departure  is  allowed  which 
is  contrary  to  the  ordinary  rules  of  law,  but  the  plea  must  be 
virtually  adhered  to;  and  the  party  cannot  be  permitted  to  intro- 
duce evidence  to  vary  his  grounds  of  defence.  In  this  case  the 
defendants  have  pleaded  no  award,  and  the  question  in  issue  is, 
whether  this  fact  be  true  or  false?  It  is  taking  altogether  a  new 


MAY  TERM,  1796.  315 


Richards  v.  Drinker. 


defence  to  admit  an  award  to  be  actually  made,  and  then  avoid 
it  by  some  extraneous  and  collateral  matter.  Nullum  fecerunt 
arbitrium  can  only  be  used  to  bring  the  legal  construction  of  the 
award  before  the  court.  The  case  in  5  Bac.  Abr.  450,  is  clearly 
in  point  and  decisive  of  this  matter.  It  is  there  eaid,  in  debt  upon 
an  obligation  for  performance  of  an  award,  the  defendant  pleads 
no  award ;  the  plaintiff  rejoins  and  shews  the  award  and  breach : 
if  the  defendant  rejoin  and  shew  that  it  is  void,  either  because 
there  was  an  award  of  mutual  releases  to  the  time  of  the  award, 
or  that  the  award  was  all  on  one  side,  or  that  it  was  not  made 
of  all  matters  submitted,  or  the  like,  in  all  such  cases,  the  rejoin- 
der is  a  departure;  for  no  award  pleaded  is  no  award  at  all, 
either  in  fact  or  in  law,  which  is  not  to  be  maintained  by  shew- 
ing the  award  to  be  void,  but  he  should  first  plead  the  award, 
and  also  the  matter  whereby  it  was  void.*  The  evidence  is 
clearly  inadmissible  and  must  be  overruled. 

The  defendant  then  offered  to  prove  payment  of  the  £5  10s. 
which  was  overruled  by  the  court  without  argument,  wrho  held 
payment  or  performance,  was  a  flat  contradiction  to  the  plea. 

A  special  verdict  was  found  by  the  recommendation  of  the 
court,  setting  forth  the  submission  and  award,  and  the  case  was 
afterwards  argued  upon  the  matters  arising  upon  the  face  of  it. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  In  this  case 
a  special  verdict  was  taken,  by  consent,  for  the  plaintiff,  subject 
to  the  opinion  of  the  court.  It  has  been  elaborately  argued  on 
both  sides,  and  now  stands  for  our  judgment. 

It  is  unnecessary  to  state  the  case  further  than  to  mention  that 
it  is  an  action  of  debt  on  a  bond  conditioned  for  the  performance 
of  an  award,  and  the  principal  questions  arising  are,  as  to  the 
validity  of  this  award. 

In  my  opinion  the  case  depends  upon  two  questions. 

1.  Whether  the  award  in  question  be  good  in  toto,  or  in  part? 
if  good  in  part,  whether  it  be  good  in  that  part  which  the  breach 
is  assigned?  2.  Whether,  as  the  cause  stands  before  the  court, 
it  is  competent  to  the  defendants  to  avail  themselves  of  the  ob- 
jections that  have  been  taken  ?  or  in  other  words,  whether  they 

*  See,  in  confirmation  of  this  doctrine,  1  Saund.  327,  n.  1.  (1  Lev.  245,  cited.) 
2  Sav.nd.  84,  c.  note,  Ib.  188.  Barlow  v.  Todd,  3  John.  367.  J/unro  v.  Alaire, 
2  Caines  320. 


316  NEW  JERSEY  SUPREME  COURT. 

Richards  v.  Drinker. 

• 
nave  not  precluded  themselves  from  objecting  to  the  legality  of 

UK-  instrument  by  the  plea  of  no  award?* 

In  examining  these  questions,  I  shall  reverse  the  order  in  which 
I  have  proposed  them,  and  consider  the  second  in  the  first  place, 
because  if  the  cause  stands  before  the  court  in  such  a  situation 
that  the  objections  which  have  been  urged  are  not  open  to  the 
defendants,  the  dispute  is  at  an  end,  and  judgment  must  be 
entered  for  the  plaintiff. 

When  it  was  first  contended,  that  the  party  was  foreclosed 
from  availing  himself  of  the  objection,  I  confess  it  struck  me  as 
a  novel  doctrine,  without  any  foundation  in  law  or  practice,  and 
at  variance  with  the  former  usage  of  our  courts. 

I  then  thought,  and  still  think,  that  as  the  practice  act  has 
ordained  that  the  cause  shall  be  at  issue  on  a  plea  filed,  and  has 
prohibited  either  a  replication  or  demurrer  in  any  case,")"  every 
defendant  had  a  right,  on  a  plea  filed,  to  avail  himself  of  all 
errors  in  law,  arising  on  the  face  of  the  award,  which  could  have 
come  in  question  upon  a  general  demurrer;  or,  that  he  had  a 
right  to  take  up  the  cause,  as  if  a  replication  had  been  filed,  and 
at  his  election,  regard  it  as  standing  upon  either  of  these  grounds. 

This  idea  has  unquestionably  been  urged  at  this  bar,  and  has 
been  repeatedly  practiced  upon.  Be  this,  however,  as  it  may,  I  feel 
no  difficulty  in  saj*ing,  that,  in  my  opinion,  the  legislature,  by  pro- 
hibiting any  pleadings  upon  the  roll  beyond  the  defendant's  plea, 
never  had  it  in  contemplation  to  vary  the  rights  of  the  parties 
to  a  suit;  to  prevent  a  party  from  availing  himself  of  every  legal 
defence  against  the  plaintiff's  claim;  to  oblige  him  to  the  pay- 
ment of  money  upon  an  award,  which  was  an  absolute  nullity  in 
law,  or  when  ho  had  a  defence  to  it  which  could  not,  consist- 
ently with  the  rules  of  pleading,  be  introduced  to  the  notice  of 
the  court  in  his  plea. 

No  doubt  can  be  entertained  but  that  a  defendant  may,  on  de- 
murrer, avail  himself  of  any  error  in  law,  appearing  on  the  face 
of  an  award  for  the  non-performance  of  which  the  suit  is  brought. 
It  is  in  this  manner  that  the  validity  of  awards  in  point  of  law, 

*See  Swinford  v.  Brown,  1  Niel  Oowe  6.  It  is  decided,  that  in  an  action  on 
an  award  to  recover  the  sum  awarded,  the  defendant  cannot  dispute  the  validity 
of  the  award,  his  proper  course  being  to  apply  to  the  court  to  have  it  set  aside. 
As  to  what  may  be  given  in  evidence,  under  the  plea  of  no  award,  see  1C  John. 
143.  16/6.227. 

f  This  act  has  been  since  repealed. 


MAY  TEEM,  1796.  317 


Richards  v.  Drinker. 


for  the  most  part,  is  brought  into  question  before  the  court.  It  is 
scarcely  necessary  to  cite  authorities  to  establish  this  principle ; 
those  which  have  been  referred  to  by  the  plaintiff  on  the  argu- 
ment clearly  settle  it.  On  principle,  then,  there  ought  to  be  as 
little  doubt,  that  whenever  on  the  whole  record  it  is  apparent 
that  the  plaintiff  ought  not  to  recover  in  the  suit  which  he  has 
brought,  he  never  can  have  judgment.  In  the  present  case,  the 
action  is  brought  on  a  bond  conditioned  for  the  performance  of 
an  award ;  on  oyer  prayed,  the  defendants  plead  no  award :  the 
award  is  produced,  and  a  breach  assigned  in  the  non-payment 
of  a  sum  of  money,  which  is  therefore  the  foundation  and  the 
gist  of  the  action.  No  replication  nor  plea  can  possibly  preclude 
the  defendant  from  availing  himself  of  the  legal  defects  of  an 
award  which  absolves  him  from  any  obligation  to  perform  it. 
He  may  do  this,  even  after  verdict  against  him,  by  motion  in 
arrest  of  judgment,  let  his  plea  be  ever  so  frivolous  or  untrue. 
He  may  bring  the  validity  of  the  award  before  the  court,  before 
the  trial,  since  the  practice  act,  by  a  motion ;  before  the  altera- 
tion which  was  introduced  by  that  law  by  a  demurrer. 

In  Baylie  v.  Taylor,  Cro.  Eliz.  899,  it  is  said,  in  debt  upon  a 
bond  conditioned  for  the  performance  of  an  arbitrament,  the 
defendant  pleads  nullum  fecerunt  arbitrium :  the  plaintiff  saith, 
talefecerunt  arbitrium;  that  is  not  sufficient  Avithout  shewing  in 
what  point  it  is  broken,  so  as  the  court  may  see  whether  he  hath 
just  cause  of  action.  The  same  doctrine  is  asserted  in  Griffin  v. 
Spencer,  Ib.  321. 

In  Barret  v.  Fletcher,  Cro.  Jac.  220;  Yelv.  152;  See  Meredith 
v.  Allen,  1  Salk.  138,  it  was  argued,  that  the  obligation  in  a  case 
of  this  kind  is  not  for  debt,  but  is  guided  by  the  condition ;  and 
the  court  ought  to  be  satisfied  that  the  plaintiff  had  good  cause 
of  action,  otherwise  they  cannot  give  judgment:  and  of  this 
opinion  was  the  court. 

12  Mod.  635,  is  to  the  same  point.  It  was  debt  on  award ; 
defendant  sets  forth  a  void  award,  and  pleads  performance,  upon 
which  issue  is  joined  and  verdict  for  plaintiff.  It  was  moved  in 
arrest  of  judgment,  and  judgment  was  arrested. 

It  is  unnecessary  to  make  many  comments  upon  these  autho- 
rities. I  shall  content  myself  with  remarking,  that  according  to 
my  understanding  of  the  law,  let  the  defendant  plead  what  he 
may,  whenever  the  plaintiff  sets  forth  an  award  and  assigns  a 


318  NEW  JERSEY  SUPREME  COURT. 

Richards  v.  Drinker. 

breach,  if  it  appears  upon  the  record  that  the  award  is  bad  in 
toto,  or  in  that  part  in  which  the  breach  is  alleged,  the  plaintiff 
cannot  have  judgment.  This  is  the  general  doctrine  of  the  law, 
and  not  peculiar  to  awards,  for,  in  every  case,  if  upon  the  whole 
record  the  plaintiff  appears  not  to  be  entitled  to  the  action,  it 
matters  not  how  much  the  other  party  may  misplcad,  judgment 
never  can  be  given  for  him.  The  whole  doctrine  of  departure  is 
therefore  inapplicable  to  the  case,  for  the  defendant,  before  judg- 
ment, never  is  estopped  from  shewing  that  the  cause  of  com- 
plaint docs  not  afford  a  legal  ground  of  action. 

II.  As  to  the  second  question.  The  counsel  for  the  plaintiff 
having  declined  arguing  the  exceptions  taken  to  all  the  items  of 
the  award,  but  confining  themselves  almost  exclusively  to  the 
fifth,  and  the  breach  assigned  in  the  non-payment  of  the  £5  10s. 
as  sufficient  to  sustain  their  action,  I  shall  only  remark,  that  as 
it  appears  to  me  at  present,  these  items  are  all  manifestly  defec- 
tive. No  intendment  can  be  made  to  support  them;  they  are 
neither  final  nor  certain,  They  are  not  mutual,  for  throughout 
the  whole  award  there  is  no  one  thing  ordered  to  be  done  for  the 
benefit,  or  in  favour  of  the  defendants,  excepting  that  they  are 
allowed  a  free  passage  up  and  down  a  navigable  river ;  a  privi- 
lege to  which  I  think  every  inhabitant  of  New  Jersey  is  legally 
entitled,  independent  of  any  award,  unless  there  is  some  partic- 
ular law  vesting  the  right  exclusively  in  Richards,  of  which  we 
have  never  heard ;  which  certainly  had  not  been  intimated  on  the 
present  argument,  and  is  not  to  be  presumed.  Even  this  privi- 
lege is  allowed  only  upon  the  performance  of  a  condition  which 
is  onerous  and  burthensome,  the  supporting  of  banks,  which  was 
a  condition  that  cannot  and  ought  not  to  be  annexed  to  the  exer- 
cise of  a  right  existing  by  law,  independent  of  any  determination 
of  those  arbitrators.  An  award  of  this  kind  could  not  bear  an 
argument. 

After  these  general  observations,  I  proceed  to  consider  the 
question  arising  on  the  fifth  item  of  the  award,  and  the  breach 
that  ban  been  assigned  in  the  non-payment  of'the  money  therein 
mentioned.  If  that  breach  will  not  support  the  action,  the  plain- 
tiff cannot,  at  all  events,  have  judgment ;  but  a  nonsuit  ought  to 
be  entered  against  him. 

This  fifth  article  is  as  follows:  "Fifthly  and  lastly — we  do 
award,  that  the  Atsibn  Company  do  pay  unto  William  Richards 


MAY  TERM,  1796.  319 

Richards  v.  Drinker. 

the  sum  of  five  pounds,  ten  shillings,  being  the  expense  of  a  for- 
mer arbitration,  and  further  costs  having  accrued  respecting  the 
premises,  exclusive  of  the  book  accounts  of  the  said  parties." 

With  respect  to  this  article  of  the  award  it  is  objected,  that  an 
award  ought  to  comprehend  every  thing  submitted,  and  must  not 
be  of  parcel  only;  and  Kyd  114,  (171)  is  cited  as  establishing 
this  rule  of  law.  It  is  contended,  that  by  this  determination  of 
the  arbitrators,  they  have  expressly  excluded  the  book  accounts 
between  the  parties,  and  that  by  the  condition  of  the  parties, 
"all  manner  of  accounts"  are  clearly  submitted.  More  particu- 
larly is  it  urged,  ought  this  rule  to  be  tenaciously  adhered  to 
when  the  submission  by  the  parties  is  conditional  and  under  an 
ita  quod,  as  in  the  present  case. 

That  the  award  must  be  according  to  the  submission,  and  must 
comprehend  all  matters  therein  contained,  is  a  rule  laid  down  as 
law,  by  all  the  authoritative  writers  upon  the  subject.  Not  only 
Kyd  is  thus  express,  but  the  same  doctrine  is  expressly  recog- 
nized and  fully  treated  of  by  Viner,  title  Arbitrament  M.  and  the 
reason  of  the  rule  is  distinctly  stated  by  these  authors.  The 
object  of  the  parties  in  making  a  submission,  is  to  have  a  final 
settlement  of  every  matter  comprehended  within  its  terms,  and 
this  purpose  is  defeated  when  the  arbitrators  exclude  from  their 
consideration  and  decision  any  portion  of  the  questions  between 
the  parties.  This  doctrine  is  stated  by  Lord  Mansfield,  and 
Denison,  J.  in  Hankins  v.  Coldough,  I  Bur.  274. 

The  case  of  Berry  v.  1'enring,  Cro.  Jac.  399,  which  was  cited 
on  the  argument  us  establishing  a  contrary  doctrine,  will  not 
admit  of  this  construction.  The  arbitrators  there  awarded  all 
suits  and  actions  should  cease,  and  all  matters  be  determined 
except  concerning  such  a  bond,  which  was  awarded  to  stand  in 
force.  It  was  impossible  to  put  any  construction  upon  this  lan- 
guage, other  than  that  which  was  given  it  by  the  court,  who 
held  that  an  award,  that  this  bond  should  stand  in  force  and  be 
satisfied,  was  a  sufficient  declaration  of  their  intention  relative 
to, the  instrument,  and  so  far  from  amounting  to  a  disclaimer  to 
meddle  with  it,  was  an  express  adjudication.  This  case  then, 
though  cited  in  opposition  to  the  doctrine  which  I  have  laid 
down,  is  an  actual  recognition  of  it. 

If  then  this  rule  be  correct,  and  I  know  of  no  modern  deci- 
sion which  goes  to  question  or  weaken  it,  it  is  clear,  that  as  in 


320  NEW  JEKSEY  StTRKME  COTJKT. 

Wildes  v.  Mairs. 

the  present  case,  the  book  accounts  of  the  parties  are  excluded 
from  the  consideration  and  decision  of  the  arbitrators,  by  the 
express  language  of  their  award  ;  that  it  comes  within  this  rule 
of  law.  It  may  bo  that  these  were  the  principal  matters  in  dis- 
pute between  the  parties.  It  may  be  that  upon  an  investigation 
of  them,  it  would  have  appeared  that  the  plaintiff  was  indebted 
to  the  defendants  in  a  sum  amounting  to  the  full  penalty  of  the 
bond,  and  that  this  penalty  is  now  demanded  of  the  latter  for 
not  paying  the  comparatively  inconsiderable  sum  of  £5  10s. 

It  is,  we  think,  fair  and  legal  to  make  every  intendment  of 
this  kind.  If  on  the  present  case  we  should  say  the  award  is 
good,  and  the  plaintiff  has  a  right  to  recover,  it  should  be  in 
effect  to  determine,  that  when  parties  submit  their  differences 
from  a  spirit  of  liberality  and  conciliation,  to  the  decision  of  a 
tribunal  of  this  kind,  and  make  it  a  condition  that  the  arbitrators 
shall  investigate  and  determine  upon  all  the  matters  in  contro- 
versy, they  may  settle  one  which  is  of  small  importance,  and 
leave  those  chiefly  in  the  view  of  the  parties  undetermined.  If 
they  may  omit  deciding  upon  one  part  of  a  case,  why  not  pass 
over  all  parts  of  it  in  which  they  happen  to  find  difficulty  ? 

We  think  the  old  rule  the  salutary  and  correct  one.  It  ap- 
pears as  consonant  to  good  sense,  as  to  the  decisions  of  courts  of 
justice  and  the  opinions  of  legal  writers;  and  we  are  therefore 
of  opinion  that  the  award  is  void,  because  the  submission  being 
conditional,  the  award  of  parcel  only,  when  the  arbitrators  had 
notice  of  other  matters  embraced  within  it,  is  illegal.* 

As  the  breach,  therefore,  is  alleged  in  the  non-performance  of 
an  award  which  is  invalid,  the  action  cannot  be  supported,  but 
judgment  of  nonsuit  must  bo  entered. 

Nonsuit  entered. 

CITED  IK  Pintard  v.  Irwin,  Sven.  512.     ffazen  v.  Addis,  2  Or.  337.    Smith  v. 
Jbemarest,  3  Hal.  243. 


WILDES  againtt  MAIRS. 

A  motion  to  change  the  venue  on  the  common  affidavit,  must  be  before  plea 
filed ;  if  a  Bpecial  ground  is  laid,  the  venue  may  be  changed  after  plea  pleaded. 

This  was  an  action  of  trespass  vi  et  armis,  assault  and  bat- 
tery, and  wounding  of  the  plaintiff.     The  venue  was  laid  in  the 

*  That  an  award  must  decide  on  all  questions  contained  in  the  submission, 
otherwiMitwillbevoid.    See  14  John.  96.    IS  76.27.   4Dall.285.   3Yeotct567. 


MAY  TERM,  1796.  321 


Wildes  v.  Mairs. 


county  of  Burlington.     The  defendant  had  pleaded  not  guilty, 
and  the  cause  was  now  at  issue. 

Leake,  for  the  defendant,  moved  to  change  the  venue  to  Mon- 
moutb,  grounding  his  application  upon  the  common  affidavit, 
which  stated  that  the  cause  of  action,  if  any,  arose  in  Mon- 
mouth,  and  not  in  Burlington. 

He  cited  1  Imp.  K.  S.  162 ;  1  Crompt.  117,  to  shew  that  a  motion 
to  change  the  venue,  required  no  previous  notice,  and  that  the 
rule  would  be  made  absolute  in  the  first  instance. 

In  the  Court  of  King's  Bench,  from  which  our  rules  of  prac- 
tice are  derived,  it  has  been  adopted  as  a  rule,  since  the  year 
1654,  that  actions  upon  the  case,  trespass  for  goods,  assault  or 
imprisonment  arising  in  any  English  county,  are  to  be  laid  in 
their  proper  counties,  and  a  contrary  course  is  highly  reprehen- 
sible and  punishable.  1  Richards  K.  B.  126.  1  Richards  0.  B. 
94.  When  the  defendant  is  desirous  of  changing  the  venue,  it  is 
always  a  matter  of  course,  unless  the  plaintiff  will  undertake  to 
give  material  evidence  in  the  county  where  it  is  originally  laid. 
Sherid.  37.  1  Rich.  K.  B.  123.  This  motion  may  be  sustained 
even  after  the  general  issue  is  pleaded,  as  was  done  in  Foster  v. 
Taylor,  1  Term  Rep.  731.  In  Hubert  v.  Flower,  1  Barnes,  492 ;  1 
Rich.  C.  B.  95,  a  plea  was  put  in  after  the  motion  was  made,  and 
before  it  was  made  absolute ;  but  the  court  held  that,  it  having 
occurred  from  inadvertence,  it  was  no  waiver  of  the  rule. 

R.  Stockton,  contra.  Trespass  and  assault,  and  battery,  is  a 
transitory  action,  and  the  plaintiff  is  permitted  to  lay  his  venue 
wherever  he  may  deem  it  most  convenient  to  have  the  cause 
tried.  The  rule  of  the  court  in  1654,  is  contradicted  by  every 
day's  practice,  and  ought  not  to  be  adopted  here.  Whatever 
may  be  the  general  rule,  it  is  contrary  to  the  uniform  usage 
to  discharge  the  venue  after  plea  pleaded,  unless  some  special 
ground  is  shewn.  In  this  case  the  motion  rests  upon  an 
affidayit  drawn  up  in  the  common  form,  which  is  altogether 
insufficient.  Foster  v.  Taylor,  was  a  case  where  a  special  ground 
was  laid,  and  in  all  the  other  cases  cited,  the  motion  was  mado 
before  plea.  In  Hardriss  v.  Sandelt,  Barnes  478,  a  rule  to 
change  the  venue  was  discharged,  defendant  having  had  time  to 
plead  by  a  judge's  order:  and  in  Singleton  v.  Lacy,  Ib.  it  was 

VOL.  I.  V 


322  NEW  JERSEY  SUPREME  COURT. 

Vanhorn  v.  Freeman. 

discharged,  because  defendant  had  summoned  plaintff  before  a 
judge  for  time  to  plead,  though  the  summons  was  discharged  and 
no  order  obtained.  Ellis  v.  Ohorke,  Barnes  485,  and  Gouthouse  v. 
Elatland,  76.  486,  are  to  the  same  point.  The  rule  is  that  after 
plea  plead  the  defendant  cannot  move  to  change  the  venue  in  any 
action.  1  Imp. K. B.  160-1.  IRich.C.B.W.  1  Hick.  K.B.  123,126. 

Leake  in  reply. 

Per  curiam.  An  action  of  trespass  for  an  assault  and  battery, 
is  a 'transitory  action,  and  if  the  rule  of  the  English  courts  of 
1654,  in  its  terms,  extends  to  this  description  of  action,  it  has 
never  been  so  received  and  practised  upon  in  New  Jersey. 
Besides,  if  it  be  a  local  action,  the  defendant  will  have  every 
benefit  of  the  exception  on  the  trial  by  a  motion  for  a  nonsuit. 

Further  the  general  rule  undoubtedly  is,  to  bring  forward  a 
motion  of  this  kind  before  the  plea,*  if  it  is  grounded  upon  tho 
common  affidavit.  When  a  special  ground  is  laid,  and  circum- 
stances are  brought  before  the  court,  by  which  it  is  shewn,  that 
the  defendant  may  be  exposed  to  unnecessary  difficulty,  or  that 
the  fair  exercise  of  justice  will  be  interrupted,  it  may  be  done 
even  after  plea  filed.f 

The  defendant  took  nothing  by  his  motion. 

CITED  is  Bell  v.  Mor.  Can.  and  Bkg.  Co.,  3  Or.  65. 


[SEPTEMBER  TERM,  1796.] 


VANHORN  against  FREEMAN. 

An  action  on  the  case  may  be  maintained  by  a  father  for  a  personal  injury 
done  to  his  child  and  servant,  under  a. per  quod. 

Though  the  child  may  be  living  in  another  family  at  the  time  she  receives  the 
injury,  such  action  is  maintainable  under  certain  circumstances :  the  slightest 
evidence  will  be  sufficient  to  shew  the  existence  of  the  relation  of  master  and 
servant. 

An  action  on  the  case  will  lie  for  debauching  plaintiff's  daughter,  when  the 
damage  laid  in  the  per  quod  arose  from  mental  affliction,  she  not  having  been 
pregnant.  Query  t 

This  was  an  action  on  the  case,  for  debauching  the  plain- 
tiff's daughter.  The  declaration  stated,  that  the  defendant,  on 

*See  3  Bot.  and  Pul.  12,  Solmoth  v.  Penner. 

f  So  it  has  been  decided,  that  defendant  may  move  to  change  the  venue  after 
issue  joined,  and  at  any  time  where  there  has  been  no  loss  of  trial,  and  no  delay 
.will  be  occasioned.  Kent  v.  Dodge,  3  John.  442. 


SEPTEMBER  TEEM,  1796.  323 

Vanhora  v.  Freeman. 

the  fourth  day  of  August,  1792,  and  at  divers  other  days  and 
times  between  that  day  and  the  first  day  of  September,  of  the 
same  year,  at  Newark,  in  the  county  of  Essex,  Ann  Vanhorn, 
the  daughter  and  servant  of  the  plaintiff,  debauched,  abused,  and 
carnally  knew,  by  which  the  plaintiff  lost  the  comfort,  assistance, 
and  service  of  his  said  daughter  and  servant,  during  all  the  time 
aforesaid,  and  was  brought  into  great  disgrace  and  infamy,  to 
his  damage  £1000.  Plea,  not  guilty. 

The  cause  was  tried  at  the  Essex  circuit,  in  1794.  On  the 
trial,  it  appeared  in  evidence,  that  the  plaintiff  was  a  minister  of 
the  Gospel,  a  man  of  reputation  and  character,  and  the  settled 
minister  in  the  parish  where  he  resides ;  that  the  daughter  was 
a  young  woman  of  excellent  character,  and,  before  this  occur- 
rence, of  a  cheerful  and  pleasant  disposition.  About  the  20th  of 
May,  1792,  she  went  to  live  with  one  Mrs.  Pike,  in  Rahway,  to 
learn  the  mantua-making  business,  with  whom  she  resided  until 
about  the  28th  of  August  following.  The  plaintiff  was  to  pay 
Mrs.  Pike  £3  per  month,  for  the  board,  washing,  and  instruction 
of  the  daughter,  and  under  the  agreement  did  actually  pay  about 
£6.  The  daughter  was,  at  the  time,  between  twenty  and  twenty- 
one  years  of  age.  During  the  first  part  of  the  time  she  lived  in 
Railway  she  was  attentive  to  her  duty,  worked  diligently,  and 
appeared  anxious  to  acquire  a  knowledge  of  the  business;  but 
during  the  latter  portion  of  the  time  her  distress  and  anxiety- 
appeared  to  have  seriously  affected  her  mind,  and  incapacitated 
her  for  labour.  Before  she  went  to  live  with  Mrs.  Pike,  she  was 
accustomed  to  do  housework  in  her  father's  family.  The  defendant 
lodged  in  the  same  house  with  her  at  Rahway,  and  the  circum- 
stances of  the  transaction,  as  they  appeared  on  the  evidence, 
shewed  a  forcible  attempt  upon  her  virtue,  and  a  struggle  ensued 
in  which  she  received  severe  corporeal  injury,  was  much  bruised, 
and  so  faint  and  exhausted  that  she  could  with  difficulty  get  up 
stairs.  About  a  fortnight  after  the  transaction,  she  returned  to  her 
father's  house;  but  subsequent  to  this,  she  was  so  ill,  in  conse- 
quence of  what  had  occurred,  that  she  was  compelled  to  have  re- 
course to  medical  assistance.  For  several  weeks  she  was  incapable 
of  performing  any  work  in  the  family,  but  it  appeared  her  situation 
was  more  owing  to  her  mental  sufferings  on  account  of  what  had 
happened,  and  her  apprehensions  lest  she  might  prove  pregnant, 
than  to  the  positive  bodily  injury  which  she  had  sustained. 


324  NEW  JERSEY  SUPREME  COURT. 

Vanhorn  v.  Freeman. 

After  the  evidence  was  closed,  the  defendant  moved  for  a 
nonsuit  on  the  following  grounds: 

1.  That  an  action  for  a  personal  injury  to  a  child  or  servant, 
must  be  brought  by  the  person  actually  sustaining  the  injury, 
and  not  by  the  master  or  parent. 

2.  That  if  a  child  or  servant  is  so  injured  in  its  body  as  to  be 
rendered  unfit  for,  or  incapable  of  service,  then,  and  in  that  case 
only,  such  an  action  is  maintainable  by  the  father  or  master,  and 
for  the  loss  of  service  only ;  which  must  arise  immediately  from 
the  injury  inflicted,  and  not  in  consequence  of  feelings  which 
might  be  excited  in  the  mind  on  account  of  the  disgrace  incurred. 

The  motion  for  a  nonsuit  was  overruled  by  the  court,  and  tho 
cause  went  to  the  jury,  who  found  a  verdict  in  favour  of  tho 
plaintiff'  for  £250  damages,  and  costs. 

The  questions  were  submitted  to  the  court  on  a  case  stated. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  This  is  an  action 
on  the  case,  for  debauching  the  plaintiff's  daughter.  On  the  trial 
of  the  cause  at  the  circuit,  a  motion  was  made  for  a  nonsuit,  which 
being  overruled,  the  case  was  submitted  to  the  jury,  who  have  found 
a  verdict  in  favour  of  the  plaintiff  for  £250.  It  now  comes  before 
the  court  for  their  determination,  and  the  grounds  relied  upon 
are,  either  that  the  action  is  misconceived,  or  that  the  injury  done 
is  one  for  which  no  compensation  can  legally  be  obtained. 

The  particular  grounds  urged  on  the  motion  for  a  nonsuit,  and 
submitted  in  tho  statement  of  the  case,  are — 

1.  That  for  a  personal  injury  done  to  a  child  or  servant,  the 
action  must  be  brought  by  the  child  or  servant,  and  not  by  tho 
parent  or  master. 

2.  If  a  child  or  servant  is  so  injured  as  to  be  rendered  incapa- 
ble of  service,  then  only  can  the  master  or  parent  maintain  a  suit 
for  loss  of  service ;  and  this  incapacity  must  arise  immediately 
from  the  injury  actually  received,  and  not  from  the  feelings  of 
the  mind  which  it  may  have  occasioned. 

In  support  of  this  first  principle,  the  counsel  for  the  defendant 
have  cited  1  Com.  Dig.  180 ;  Gray  v.  Jefferies,  Cro.  Eliz.  55,  and 
•what  is  reported  to  have  been  said  by  Lord  Holt  in  the  case 
of  Russell  v.  Corne,  2  Ld.  Ray.  1031,  which  authorities,  it  i? 
contended,  establish  tho  principle,  that  a  father  cannot  maintain 
an  action  for  an  injury  of  this  kind.  The  case  of  Postelthwaitev. 


SEPTEMBER  TEEM,  1796.  325 

Vanhorn  v.  Freeman. 

Parker,  3  Bur.  1878,  has  likewise  been  referred  to,  to  shew  that 
trespass  will  not  lie  where  the  daughter  is  in  the  service  of 
another  person. 

On  the  part  of  the  plaintiff,  we  have  been  referred  to  6  Sac, 
Abr.  562,  where  the  case  of  Sippora  v.  Basset  is  given  from 
Siderfin  225,  and  Clayt..  133.  Edmondson  v.  Machett,  2  Term 
Rep.  4,  and  Bennett  v.  Alcott,  Ib.  166. 

It  appears  to  me  that  the  per  quod  in  the  declaration,  in  actions 
of  this  sort,  is  the  gist  of  the  case ;  and  this  is  equally  so  in  actions 
on  the  case  and  trespass.  I  have  met  with  no  precedent  where 
an  action  has  been  sustained  upon  any  other  ground;  although 
it  is  equally  indisputable,  that  it  is  in  general  a  mere  fiction  of 
the  law,  in  order  to  give  some  kind  of  compensation  for  an  injury 
of  the  most  atrocious  kind,  which  would  otherwise  be  remedi- 
Jess.  In  these  cases,  generally  speaking,  little  or  no  service  is 
either  performed  by  the  daughter,  or  expected  from  her;  and 
were  it  not  for  the  highly  respectable  characters  by  whom  this 
fiction  has  been  supported  and  recognized,  I  should  not  hesitate 
to  express  my  opinion,  that  it  disgraces  the  jurisprudence  of  the 
country.  Nevertheless,  sitting  in  this  place  to  administer  the  laws 
as  they  really  exist,  without  any  authority  to  substitute  improve- 
ments which  are  even  universally  called  for,  I  feel  myself  bound 
to  adhere  to  a  uniform  course  of  precedents,  and,  in  the  present 
instance,  I  certainly  shall  not  deviate  from  them. 

There  are  two  questions  which  we  are  now  called  upon  to 
decide :  1.  Whether  an  action  on  the  case  may  be  maintained 
by  a  parent  for  debauching  his  daughter?  2.  If  it  will  lie, 
whether  the  evidence  before  us  will  support  the  present  action? 

With  respect  to  the  first  of  these  questions  I  think  that  it  has 
been  already  determined  that  such  an  action  is  sustainable.  I 
refer  to  the  case  of  Anderson  v.  Runyon,  Narr.  of  Sept.  Term 
1772,  a  little  before  the  Revolution.  But  if  there  had  never 
been  a  decision  in  this  court  upon  the  point,  we  should  feel  our- 
selves warranted  in  saying,  from  the  cases  in  the  books,  that 
this  action  will  lie :  not  intending,  by  any  means,  to  deny  that 
trespass  may  be  brought  with  the  same  propriety,  for  the  pre- 
cedents and  authorities  are  both  ways. 

If  it  should  be  admitted  that  the  opinion  of  Holt,  in  the  case 
of  Russell  v.  Corne,  was  different,  and  that  he  is  to  be  understood 
to  say,  that  no  action-  will  lie  by  the  father  for  an  injury  of  this 


326  NEW  JERSEY  SUPREME  COURT. 

Vanhorn  v.  Freeman. 

kind,  unaccompanied  by  such. an  entry  upon  his  property  as 
would  support  trespass;  and,  in  this  latter  case,  the  debauching 
of  the  daughter  ought  to  be  given  in  evidence,  not  as  constituting 
in  itself  a  ground  of  action,  but  merely  as  an  aggravation,  I  should 
think  that  he  had  mistaken  the  law,  and  was  contradicted  by 
authorities  of  the  most  respectable  kind.  Unquestionably  the 
latter  cases  speak  a  different  language,  and  the  doctrine  which 
they  establish  seems  more  likely  to  effectuate  justice,  or  rather 
better  calculated  to  prevent  a  default  of  justice,  by  affording  a 
compensation  in  damages  for  an  outrageous  and  atrocious  injury. 

In  this  opinion,  I  think  myself  borne  out  by  the  cases  to  which 
I  shall  now  briefly  refer.  The  case  of  Cox  v.  Rolt,  2  Wils.  253, 
•was  a  special  action  on  the  case,  brought  for  deflowering  the 
plaintiff's  daughter,  with  a  per  quod  as  in  trespasss.  It  appears, 
from  the  report,  that  the  defendant  had  pleaded  the  general 
issue,  and  afterwards  upon  an  affidavit  moved  to  withdraw  his 
plea,  and  replead  it  with  the  statute  of  limitations.  The  court, 
however,  refused  the  application.  "What  eventually  became  of 
the  case,  we  are  not  informed,  but  this  much  at  least  appears, 
that  the  defendant  seemed  unwilling  to  rest  the  cause  upon  the 
merits,  and  was  desirous  of  availing  himself  of  every  defence  in 
his  power.  If  an  action  of  this  kind  could  not  have  been  sup- 
ported, this  objection  would  have  furnished  a  much  surer  ground 
for  him  to  rely  upon,  and  would  naturally  have  been  resorted  to; 
but  it  does  not  appear  to  have  occurred,  either  to  the  counsel  or 
to  the  court. 

The  opinion  of  Judge  Buller  in  Bennett  v.  Alcott,  needs  not 
to  be  supported  and  cannot  be  weakened  by  inference  or  pre- 
sumption. He  says,  expressly,  that  an  action  merely  for  debauch- 
ing a  man's  daughter,  by  which  he  loses  her  service,  is  an  action 
on  the  case.  He  does  not  consider  the  opinion  of  Lord  Holt,  in 
the  case  from  Lord  Raymond,  as  in  any  degree  impugning  this 
doctrine,  but  rather  as  corroborating  it:  he  understands  Holt 
to  say,  that  where  the  offence  is  accompanied  with  an  illegal 
entry  of  the  father's  house,  he  has  his  election,  either  to  bring 
trespass  for  the  breaking  and  entering,  and  lay  the  debauching 
of  the  daughter,  and  the  loss  of  her  service  as  consequential ; 
or  he  may  bring  the  action  on  the  case,  merely  for  debauch- 
ing his  daughter,  per  quod  servitium  amisit.  Great  respect  and 
weight  should  be  attached  to  the  deliberate  opinion  of  Bui- 


SEPTEMBER  TERM,  1796.  327 

Vanhorn  v.  Freeman. 

ler,  and  I  should  demand  much  stronger  reasons  than  I  have  yet 
heard,  before  I  could  venture  to  pronounce  him  mistaken. 

The  last  case  which  I  shall  cite,  upon  this  question,  is  that  of 
Fores  v.  Wilson,  Peake  N.  P.  55,  which  was  decided  as  late  as 
the  31  George  III.  This  case  is  not  so  fully  stated  as  I  could 
wish,  but  it  goes  far  enough  to  establish  the  principle  for  which 
it  is  referred  to,  which  is,  that  an  action  on  the  case  will  lie  for 
debauching  a  inaid  servant,  without  a  trespass  upon  the  prop- 
erty of  the  master,  further  than  the  injury  done  to  the  servant. 
It  is  stated  to  be  an  action  for  assaulting  the  maid  servant  of 
the  plaintiff,  and  debauching  her,  per  quod  servitium  amisit.  It  is 
not  stated,  that  he  entered  the  house  of  the  plaintiff,  or  com- 
mitted any  thing  that  could  be  called  a  trespass,  other  than 
enticing  her  away  from  his  service,  and  no  suit  was  brought  for 
the  enticement.  It  appears,  she  went  to  live  with  the  defendant, 
and  he  debauched  her,  and  for  this  the  plaintiff  recovered  dam- 
ages, though  no  father  and  no  relation. 

These  cases,  and  the  opinion  of  Buller,  authorize  me  to  say, 
that  this  action  for  debauching  a  daughter  lies,  when  laid  with  a 
per  quod;  that  the  doctrine  of  master  and  servant,  which  is  re- 
ferred to  as  supporting  an  action  of  trespass,  is  equally  applica- 
ble to  case. 

I  have  not  entered  minutely  into  the  old  law  upon  this  sub- 
ject. I  am  aware  that  it  has  been  seriously  questioned,  whether 
an  action  could  be  sustained  for  the  abduction  of  any  child  other 
than  an  heir?  But  I  believe  no  action  for  debauching  a  daughter 
was  ever  thought  of  before  Siderfin,  unless  it  was  the  case  of 
Norton  v.  Jason,  Styles  398,  decided  in  1653,  which  was  an  action 
on  the  case. 

Upon  this  part  of  the  case,  I  shall  only  add,  that  the  first 
action  brought  in  this  state,  for  an  injury  of  this  kind,  was  case: 
I  allude  to  Atkinson  v.  Hains,  issue  roll  of  August,  1746. 

With  regard  to  the  second  question,  it  has  been  contended, 
that  in  order  to  entitle  the  plaintiff  to  an  action  for  an  injury  done 
to  his  daughter,  the  damage  ought  to  have  resulted  immediately 
from  the  assault  committed,  and  not  to  have  been  occasioned,  as 
in  this  case,  by  grief  of  mind  or  mental  pain.  So  far  as  this  doc- 
trine is  applied  to  the  action  of  trespass,  there  is  some  ground  for 
urging  it,  but  it  is  by  no  means  so  plain  that  it  can  afford  any 
defence  in  an  action  on  the  case,  where  the  immediate  injury  ia 


328  NEW  JERSEY  SUPREME  COURT. 

Vanhorn  v.  Freeman. 

passed  over,  and  compensation  is  sought  exclusively  for  the  con- 
sequential damages.  When  a  man  commits  such  an  injury  as  is 
here  proved  upon  the  defendant,  and  in  consequence  of  his  act 
an  incapacity  to  perform  her  accustomed  duties  results  to  tho 
daughter,  though  it  may  proceed  immediately  from  her  mental 
sufferings,  I  know  of  no  case  and  no  principle  of  law  which  ex- 
empts him  from  recompensing  the  injury  which  he  has  inflicted. 
At  any  rate,  should  a  question  of  this  kind  really  exist,  we  do 
not  feel  any  disposition  in  a  case  like  the  present,  accompanied 
by  so  many  atrocious  circumstances  on  the  part  of  the  defend- 
ant, and  after  a  verdict  has  passed  against  him,  to  examine  very 
particularly  into  objections  which  are  wholly  technical,  in  order 
to  relieve  him  from  a  situation,  all  the  difficulties  and  embarrass- 
ments of  which  he  has  brought  upon  himself,  by  his  own  mis- 
conduct. 

But  the  facts  upon  which  this  objection  rests  are  by  no  means 
clear;  there  is  certainly  ground  for  saying,  that  severe  and  im- 
mediate personal  injury  was  produced  by  the  assault.  The  evi- 
dence shews  that  ho  threw  her  upon  the  ground,  treated  her 
roughly,  and  actually  forced  her  against  her  consent;  that  she 
struggled  with  him  until  her  strength  was  exhausted;  that  her 
arms  were  severely  bruised,  and  sore;  and  that  it  was  with  con- 
siderable difficulty  that  she  was  enabled  to  go  up  stairs.  Even 
after  her  return  to  her  father's  house  she  was  compelled  to  have 
medical  assistance,  in  consequence  of  the  injury  which  she  had 
sustained.  Upon  these  facts,  and  after  verdict,  the  court  will  not 
act  upon  the  supposition,  that  her  inability  to  attend  to  her  busi- 
ness, and  to  perform  her  accustomed  duties,  was  occasioned 
entirely  by  the  situation  of  her  mind.  We  think  tho  per  quod  is 
fully  and  substantially  proved. 

Whether  the  plaintiff  is  precluded  from  recovering  in  the 
present  action  on  the  ground,  that  the  daughter  did  not,  at  tho 
time  of  receiving  this  injury,  reside  in  her  father's  house?  is 
the  next  question  that  comes  under  our  consideration. 

The  oaso  of  Postelthwaite  v.  Parkes,  which  has  been  cited 
from  3  Bur.  did  not,  it  is  true,  turn  altogether  upon  the  age  of 
the  daughter,  who  was,  at  the  time,  twenty-three  years  old,  but, 
as  seems  to  be  considered  by  Buller,  (2  Term  Hep.  168)  the 
ground  which  influenced  the  opinion  of  the  court  was,  that  she 
was,  at  the  time,  in  tho  service  of  another.  This  idea  is  con- 


SEPTEMBER  TEEM,  1796.  329 

Vanhorn  v.  Freeman. 

firmed  by  Bennett  v.  Alcott  and  Tullidge  v.  Wade,  3  Wils.  18,  in 
both  of  which  cases  the  daughter  appears  to  have  been  nearly, 
or  quite  thirty. 

In  actions  of  this  kind  it  must  also  be  proved,  that  the  daugh- 
ter stands,  in  some  degree,  in  the  relation  of  servant  to  her  father; 
this  is,  technically  speaking,  the  gist  of  the  action ;  but  the 
slightest  evidence  has  been  held  sufficient  to  support  this  part 
of  the  case.  It  is  not  by  any  means  essential  to  prove  an  actual 
hiring,  or  that  she  receives  wages,  for,  as  is  said  by  Lord  Ken- 
yon,  in  Fores  v.  Wilson,  it  has  been  determined,  that  when 
daughters  of  the  highest  and  most  opulent  families  have  been 
seduced,  the  parent  may  maintain  an  action  on  the  supposed 
relation  of  master  and  servant,  though  every  one  must  know 
that  such  a  child  cannot  be  treated  as  a  menial  servant.*  Buller, 
in  the  case  of  Bennett  v.  Alcott,  so  frequently  referred  to,  expresses 
the  same  opinion,  and  says,  that  even  the  milking  of  cows  is 
sufficient.  For  my  own  part,  I  think,  that  whilst  the  daughter 
is  under  age,  and  is  maintained  by  the  parent,  he  always  has  a 
sufficient  interest  in  her  labour  and  services  to  afford  a  founda- 
tion for  this  action. 

From  the  state  of  the  case,  it  clearly  appears — 1.  That  the 
daughter  was  within  the  age  of  twenty-one  years.  2.  That  when 
she  resided  with  her  father,  she  actually  performed  work  in  the 
family;  and  that  when  she  returned  home,  she  was  incapable  of 
it,  in  consequence  of  the  injury  received  from  the  defendant.  3. 
That  she  was  placed  at  Mrs.  Pike's  in  order  to  acquire  a  knowl- 
edge of  business  which  might  enable  her  to  support  herself,  and 
ease  her  father  from  the  expense;  that  while  there,  she  was 
maintained  by  her  father,  who  paid  for  her  board  and  instruc- 
tion. 4.  That  she  received  gross  and  violent  abuse,  and  for 
ten  weeks  remained  a  burthen  to  her  father,  and  incapable  of 
working. 

Under  these  circumstances,  we  think  the  motion  for  a  nonsuit 
was  properly  overruled,  and  judgment  must  be  entered  on  the 
•verdict. 

Judgment  for  the  plaintiff. 

.NOTE. — "Whether  the  action  brought  by  a  parent  for  debauch- 
ing his  daughter,  ought  to  be  trespass  or  case,  is  a  question  upon 

*  See  the  same  doctrine  laid  down  in  10  John.  115,  Nicholson  v.  Stryker;  also  in 
Dean  v.  Peel,  5  East  45.  See  who  may  maintain  this  action.  11  East  23.  9/oAn.887. 


330  NEW  JERSEY  SUPEEME  COURT. 

White  v.  Hunt. 

which  the  greatest  authorities  have  differed.  Irt  Norton  v.  Jason, 
Styles  398,  it  was  case,  but  the  action  was  held  not  well  brought, 
on  account  of  other  matter  which  was  joined  in  the  declaration. 
Tidd's  Prac.  ranges  it  among  actions  on  the  case,  and  1  Selw.  N. 
P.  362;  76.  966 ;  Cox  v.  Holt,  1  Wils.  253  ;  Cook  v.  Sayer,  2  Bur. 
752 ;  2  Wils.  85 ;  (but  see  2  Bl  Rep.  855,  S.  (7.)  Macfarlan  v.  Oli- 
vant,  6  East  387 ;  Buller's  opinion,  2  Term.  Rep.  167 ;  Grose's 
opinion,  5  Term  Rep.  136,  in  Weston  v.  Timbull,  are  all  confirma- 
tory of  the  same  doctrine.  It  seems  also  to  bo  recognized  by 
Lord  Kenyon,  in  Taylor  v.  Niri,  1  Esp.  Ca.  385.  If  precedents 
and  authorities  are  to  be  regarded  as  evidence  of  what  the  law 
is,  it  is  presumed  that  those  which  have  been  cited  authorize  the 
opinion,  that  no  objection  could  now  be  sustained  against  this 
form  of  action.  There  can  be  as  little  doubt,  after  the  opinion 
of  the  court  in  Woodward  v.  Walton,  5  Bos.  &  Pull.  476,  that 
trespass  is  equally  proper ;  and,  in  addition  to  the  cases  there 
referred  to,  this  form  of  action  has  been  adopted  in  Jones  v.  Brown, 
1  Esp.  Ca.  247;  Pedke  283,  S.  C.;  and  Akerly  v.  Haines,  2  Caines 
292.  The  opinion  expressed,  therefore,  in  the  principal  case,  by 
the  Chief  Justice,  that  either  action  is  maintainable,  according 
to  the  peculiar  circumstances  of  the  transaction,  may  be  con- 
sidered as  the  present  doctrine  of  the  law.* 

CITED  15  Furman  v.  Apphgate,  3  Zab.  28.    Magee  v.  Holland,  3  Dutch.  86, 96. 
Allen  v.  Wheeler,  1  Zab.  94. 


WHITE  against  HUNT. 

After  an  interlocutory  judgment  by  default,  in  an  action  for  assault  and  bat- 
tery, the  court  have  the  power,  in  case  of  difficulty,  or  when  special  circum- 
stances are  laid  before  them,  to  direct  a  special  jury  to  be  summoned  in  order 
to  assess  the  damages,  and  the  inquiry  to  be  held  before  a  judge  at  Nisi  Prius; 
but  the  mere  circumstance  of  the  battery  having  been  very  severe,  is  not  suffi- 
cient to  take  the  case  out  of  the  ordinary  course. 

This  was  an  action  of  trespass  for  an  assault  and  battery. 
The  defendant  had  suffered  judgment  to  go  against  him  by 
default,  and  Leake,  for  the  plaintiff,  had  given  notice  that  he 
intended  to  move  the  court,  that  a  writ  of  inquiry  of  damages 
should  bo  executed  "before  the  justices  of  Nisi  Prius,  at  the 
Huntcrdon  Assizes,"  and  that  the  sheriff  should  bo  instructed  to 
return  upon  the  jury  of  inquiry  "a  good  jury,  to  wit,  a  special 
jury  of  freeholders,"  &c. 

*Se«,  alao,  Ream  v.  Rank,  Serg.  and  Raw.  215. 


SEPTEMBER  TERM,  1796.  331 

White  v.  Hunt. 

Leake,  in  support  of  the  motion,  read  the  affidavit  of  the  plain- 
tiff, stating  the  circumstances  and  nature  of  the  battery  as  being 
extremely  outrageous,  and  the  injury  inflicted  as  being  very  se- 
vere. He  then  insisted — 1.  That  in  a  case  of  this  kind  the  writ 
of  inquiry  should  be  held  before  the  justices  of  assize.  2.  That 
the  court  might  order  a  special  jury  of  freeholders,  in  order  to 
assess  the  damages.  Imp.  K.  B.  295-6.  Imp.  C.  B.  439.  Barnes 
135.  Benson  v.  Frederick,  3  Bur.  1845.  12  Mod.  519.  East  India 
Company  v.  Glover,  1  Sir.  612. 

R.  Stockton,  against  the  motion.  There  can  be  no  question, 
that  when  the  circumstances  of  the  case  require  a  deviation  from 
the  usual  course  of  practice,  it  is  in  the  power  of  the  court  to 
direct  the  inquiry  of  damages  to  be  executed  before  the  justices 
of  the  assize.  Impey,  says  that  leave  is  seldom  granted,  unless 
the  case  is  very  special,  as  where  the  law  is  mixed  with  the  fact, 
or  it  appears  to  be  of  too  much  consequence  for  the  sheriff  to  under- 
take. It  is  not  sufficient  to  state  that  large  damages  are  anticipated, 
for  unless  some  matter  of  law  is  likely  to  arise  in  the  course  of  the 
inquiry,  the  court  will  not  give  leave  to  have  it  executed  before  a 
judge,  merely  on  account  of  the  importance  of  the  facts.  1  Tidd. 
519,  (see  1  Sellon  344,)  the  motion  is  objectionable  upon  another 
ground.  Even  where  writs  of  inquiry  are  executed  before  a 
judge,  it  is  never  done  through  the  intervention  of  a  special  jury. 
The  sheriff  is  directed  to  summon  a  good  jury,  but  this  term  sig- 
nifies nothing  more  than  a  better  sort  of  common  jury,  5  T.  R. 
4 GO,  in  the  case  of  the  King  v.  Perry,  2  Tidd.  725. 

KINSET  C.  J.  There  is  no  doubt  that  the  court  may,  and  in  a 
proper  case  would,  direct  the  execution  of  the  writ  of  inquiry  out 
of  the  ordinary  course  of  practice ;  but  on  the  present  occasion  no 
difficulty  either  in  law  or  fact  is  pointed  out,  which  might  require 
the  presence  and  attention  of  a  judge  of  this  court.  (See  Tillotson 
v.  Cheetham,  2  John.  107.)  The  defendant  has  permitted  judgment 
to  go  against  him  by  default,  by  which  the  battery  is  acknowl- 
edged, and  the  only  remaining  question  to  be  settled  is,  what 
amount  of  damages  ought  to  be  allowed  the  plaintiff.  The  affidavit 
which  has  been  laid  before  us  states  the  battery  to  have  been  a  vio- 
lent one  ;  but  the  only  inference  that  can  be  drawn  from  this  cir- 
cumstance, is,  that  heavy  damages  are  contemplated.  Prima  facie 


332  NEW  JERSEY  SUPREME  COURT. 

State  v.  Rockafellow. 

the  sheriff  und  a  common  jury  are  competent  to  the  mere  assess- 
ment of  damages,  whatever  may  be  their  extent :  it  is  a  question 
peculiarly  and  exclusively  within  their  powers,  and  upon  a  point 
of  this  kind  I  am  not  aware  that  any  advice  or  direction  would  be 
necessary  from  a  judge  of  this  court ;  or  that  a  difficulty  which 
might  arise  before  the  jury  would  be  of  that  description,  which  it 
would  be  within  the  line  of  his  duty  to  settle.  It  is  not  suggested 
that  there  exist  any  particular  objections  to  this  sheriff,  on  the 
ground  of  partiality  or  otherwise,  or  that  there  is  any  legal  in- 
tricacy in  the  case.  I  am  unable  therefore  to  perceive  any  cir- 
cumstance which  distinguishes  it  from  ordinary  cases,  and  ana 
therefore  of  opinion  that  it  ought  to  take  the  common  course. 

CHETWOOD  J.  concurred  with  the  Chief  Justice. 

SMITH  J.  The  powers  which  the  court  are  now  called  upon  to 
exercise,  are  entirely  discretionary ;  and  in  the  exercise  of  their 
discretion  they  ought  not  to  be  narrowed  down  by  a  strict  ad- 
herence to  any  precedent  or  authority.  Every  case  must  rest 
upon  its  own  peculiar  circumstances.  I  consider  the  affidavit 
of  the  plaintiff,  proving  a  violent  and  outrageous  battery,  as  estab 
lishing  a  special  case,  authorizing  us  to  accede  to  his  request,  and 
I  am  unable  to  perceive  any  disadvantage  which  can  poasibly 
arise  from  directing  the  execution  of  the  writ  of  inquiry  before 
the  justices  of  Nisi  Prius. 

The  plaintiff  took  nothing  by  his  motion. 

»  CITED  is  Smick  v.  Opdycke,  7  Hal.  351. 


THE  STATE  against  ROCKAFELLOW. 

ON   AX   INDICTMENT   FOB  A   RAPE. 

It  is  a  goo'i  plea,  in  abatement  to  an  indictment  for  a  rape,  that  one  of  the 
grand  jurora  by  whom  the  bill  was  found,  was  not  a  freeholder,  as  he  is  directed 
to  be  by  the  act  of  assembly. 

In  a  capital  case,  the  court  have  a  power  to  bail,  but  they  will  not  exercise 
this  power  when  there  exist  strong  doubts  as  to  the  innocence  of  the  prisoner, 
particularly  after  an  attempt  by  him  to  escape. 

An  indictment  had  been  found  against  the  prisoner  at  the 
Ilunterdon  assizes,  in  February  Term  last,  which  had  been  re- 
moved into  this  court  by  the  Attorney- General  by  certiorari. 

The  prisoner  being  arraigned,  tendered  in  propria  persona,  tho 
following  plea  in  writing. 


SEPTEMBER  TERM,  1796.  333 

State  v.  Rockafellow. 

And  the  said  Christopher  Rockafellow,  in  his  own  proper 
person  comes,  and  having  heard  the  aforesaid  indictment  read, 
and  protesting  that  he  is  not  guilty  of  the  premises  charged  in 
the  said  indictment,  for  plea  nevertheless  saith,  that  he  ought  not 
to  be  compelled  to  answer  the  said  indictment,  because  he  says, 
that  by  an  act  of  the  legislature  of  the  former  province,  now 
state  of  New  Jersey,  entitled,  "An  act  for  ascertaining  the  quali- 
fications of  jurors  within  this  province,"  passed  the  eleventh  day 
of  March,  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  thirteen  or  fourteen,  (Allinson  24)  it  is  among  other  things 
enacted,  that  from  and  after  the  publication  of  that  act,  each 
and  every  person  summoned  and  returned  to  serve  on  grand 
inquests,  shall  be  freeholders  of  the  county,  for  which  they  shall 
serve,  and  shall  each  of  them  be  worth  one  hundred  pounds  in 
real  and  personal  estate,  in  the  said  county.  That  the  said  act 
of  assembly  has  been  published,  and  now  remains  in  full  force 
and  unrepealed.  And  the  said  Christopher  further  saith,  that  at 
the  Court  of  General  Quarter  Sessions  of  the  peace,  in  and  for  the 
said  county  of  Hunterdon,  in  the  Sessions  of  February  last  past, 
the  sheriff  of  the  county  of  Hunterdon,  did  summon  and  return 
one  Titus  Quick,  to  serve  on  the  grand  inquest  of  the  county 
aforesaid,  at  the  said  sessions  of  the  said  court.  That  the  said 
Titus  Quick,  was  by  the  court  aforesaid,  at  the  sessions  afore- 
said, sworn  to  serve  as  a  grand  juror  for  the  county  aforesaid, 
and  did  then  and  there  serve  as  a  grand  juror  for  the  county 
aforesaid,  and  did  then  and  there  serve  as  a  grand  juror  in  the 
grand  inquest  aforesaid.  That  the  said  Titus  Quick,  at  the  time 
he  was  summoned,  returned  and  sworn,  and  when  he  served  on 
the  said  grand  inquest,  was  not  a  freeholder  of  the  said  county, 
nor  was  he  worth  one  hundred  pounds  in  real  estate  in  the  said 
county.  And  the  said  Christopher  further  saith,  that  the  said 
indictment  was  found  and  presented  by  the  said  grand  inquest, 
at  the  court  and  sessions  aforesaid :  that  only  twelve  of  the  jurors 
so  summoned,  returned  and  sworn,  or  affirmed,  as  members  of 
the  said  grand  inquest  found  the  indictment  to  be  a  true  bill ; 
and  the  said  Titus  Quick,  being  so  as  aforesaid,  an  unqualified 
illegal  juror,  was  one  of  the  twelve  jurors  who  agreed  to  find 
and  present  the  said  bill  of  indictment :  all  which  the  said  Chris- 
topher is  ready  to  aver,  verify  and  prove,  wherefore  he  prays 
judgment  whether  he  shall  be  called  further  to  answer  the  said 


334  NEW  JERSEY  SUPREME  COURT. 

State  v.  Rockafellow. 

indictment,  and  he  prays  to  be  dismissed  the  court  hero,  of  and 
upon  the  premises. 

CHRISTOPHER  ROCKAFELLOW. 

To  this  plea  the  Attorney- General  instantly  demurred ;  and  tho 
court  ordered  the  counsel  for  the  state  to  proceed,  the  demurrer 
being  upon  their  side. 

Woodruff,  attorney-general,  and  Leake,  in  support  of  the  de- 
murrer, contended,  that  the  want  of  freehold  in  the  juror  was 
matter  of  challenge -to  the  person,  and  not  of  plea  to  the  indict- 
ment. An  objection  of  this  kind  must  be  made  before  bill  found 
by  the  prisoner,  the  court,  or  by  the  prosecution  ;  but  it  is  not 
competent  to  question  the  regularity  of  the  proceedings  or  tho 
competency  of  the  juror  in  this  manner,  and  at  this  time.  By  the 
common  law,  one  who  is  under  prosecution,  for  any  crime  what- 
soever, ma}',  before  he  is  indicted,  challenge  any  of  the  persons 
returned  on  the  grand  jury,  as  being  outlawed,  &c.  2  Hawk.  307, 
c.  25,  sec.  16.  Every  exception  of  this  kind  must  be  taken  before 
the  indictment  found.  3  Sac.  Abr.  725.  2  Hale  H.  P.  C.  272-3. 

Wherever  the  grand  juror  labours  under  any  of  the  disabilities 
enumerated  in  the  statute,-  11  Hen.  4  c.  9,  the  exception  may  be 
taken  at  any  time,  by  plea  to  the  indictment.  3  Inst.  32-3.  Scar- 
lett's case,  12  Co.  98.  2  H.  H.  P.  C.  154-5.  But  this  is  considered 
uniformly  as  a  deviation  from  the  common  law,  introduced  by 
the  statute,  which  declares  in  express  terms,  that  every  indict- 
ment made  contrary  to  its  directions,  in  any  point,  shall  be  held 
void  and  of  no  effect. 

The  act  of  assembly,  prescribing  the  qualifications  of  jurors, 
contains  no  negative  words ;  but  it  affirmatively  points  out  the 
description  of  persons  who  are  to  bo  summoned  and  returned 
as  grand  jurors,  without  infringing  upon  the  common  law  as  to 
the  manner  in  which  exceptions  are  to  be  taken,  of  any  defect 
in  complying  with  its  provisions. 

The  want  of  a  freehold  or  an  estate,  of  a  certain  value,  is  not 
a  positive  incapacity,  either  by  the  common  law  or  by  the  stat- 
ute. The  provisions  of  the  act  are  merely  directory  to  tho  sheriff, 
and  intended  for  his  guidance,  and  it  is  not  competent  to  a  pris- 
oner, who  has  suffered  the  opportunity  of  challenging  the  juror 
to  pass  by  without  availing  himself  of  the  objection,  to  como 
forward  at  this  late  period  to  urge  it.  The  language  of  the  law, 


SEPTEMBER  TEEM,  1796.  335 

State  v.  Rockafellow. 

as  to  the  other  qualifications  of  the  jurors,  shews  clearly  that  the 
legislature  did  not  intend  that  a  defect  of  this  kind  should  const) 
tute  a  ground  of  defence;  and  that  the  court,  instead  of  examin 
ing  into  the  guilt  or  innocence  of  the  accused  should  employ 
their  time  in  investigating  the  qualifications  of  the  jurors.  The 
same  act  requires,  that  the  persons  so  summoned  and  returned 
shall  be  notified  in  a  particular  manner,  and  a  certain  number  of 
days  before -the  first  day  of  the  court;  that  they  shall  not  only 
be  freeholders,  but  that  they  shall  be  "of  good  fame,  credit,  and 
reputation."  It  is  easy  to  imagine  a  case  in  which  the  absurdity 
and  injurious  consequences  of  this  doctrine  shall  be  made  con- 
spicuously manifest.  A  person,  when  he  is  arraigned  upon  his" 
indictment,  may  plead,  that  one  of  the  grand  jurors  was  not 
notified  in  the  particular  manner  pointed  out  by  the  act;  that  a 
second  had  no  notice,  until  within  four  days  before  the  first  day 
of  the  court;  that  a  third  is  not  a  freeholder  within  the  county; 
a  fourth  not  possessed  of  property  to  the  amount  of  one  hun- 
dred pounds;  and  a  fifth  not  of  good  fame  and  character.  With 
what  propriety  can  it  be  urged,  that  the  attorney  general  is 
bound  to  take  an  issue  upon  each  of  these  different  allegations, 
and  that  the  time  of  the  court  is  to  be  wastefully  consumed  in 
trying  questions  which  have  nothing  to  do  with  the  guilt  or 
innocence  of  the  accused  ?  That  upon  the  issue,  whether  one 
of  the  jurors  is  a  man  of  good  fame  and  reputation,  his  charac- 
ter is  to  be  made  a  matter  of  judicial  consideration,  in  the  face 
of  the  country,  without  affording  him  an  opportunity  of  vindi- 
cating Lfmself  from  the  aspersions  that  may  be  thrown  upon 
him.  Such  consequences  are  alarming,  and,  as  they  are  legiti- 
mate consequences  from  the  doctrine  relied  upon  for  the  defend- 
ant, merit  the  most  serious  consideration. 

JR.  Stockton,  for  the  prisoner.  This  unquestionably  is  a  case 
which,  so  far  as  regards  the  circumstances  attending  it,  is  new; 
and  the  consequences  of  a  decision,  which  will  establish  a  rule 
of  very  general  operation,  not  only  in  this  case,  but  in  numer- 
ous others  which  might  be  stated  under  it,  extremely  important. 

The  legislature  of  the  state  appear  to  have  considered  it  us  of 
the  utmost  consequence  to  prescribe  qualifications  which  would 
be,  in  their  opinion,  the  best  calculated  to  secure  the  fittest  char- 
acters to  officiate  in  the  great  and  delicate  duty  of  presenting 


336  NEW  JERSEY  SUPKEME  COUftT. 

State  v.  Rockafellow. 

the  guilty  for  trial,  and  of  guarding  the  innocent  from  even  the 
forms  of  defence.  When  such  is  the  obvious  intention  of  the  leg- 
islature, it  becomes  the  duty  of  the  court,  in  construing  the  stat- 
ute, or  the  language  by  which  this  intention  is  expressed,  to  keep 
this  idea  in  their  mind,  and  to  endeavour,  so  far  as  it  can  bo  ren- 
dered consistent  with  the  general  principles  of  law  and  policy, 
to  give  effect  to  the  salutary  and  benevolent  provisions  of  the 
act. 

In  this  case,  the  important  facts  which  are  alleged  in  the  plea 
of  the  defendant,  and  admitted  by  the  demurrer,  are  two. 

1.  That  Titus  Quick,  one  of  the  grand  jurors  who  found  the 
bill  against  the  prisoner,  was  not,  at  the  time,  a  freeholder  within 
the  county. 

2.  That  the  bill  was  found  by  twelve  of  the  grand  jurors  only, 
of  which  number  Quick  was  one. 

That  by  the  common  law,  exceptions  lay  to  the  competency 
of  a  grand  juror,  it  would,  after  the  authorities  which  have  been 
cited  on  the  part  of  the  prosecution,  be  a  waste  of  time  to  at- 
tempt to  prove.  The  principle  has  never  been  questioned,  and 
is  acceded  to  by  the  attorney-general.  Neither  can  there  exist 
any  question  but  that  the  act  of  assembly  which  has  been  re- 
ferred to  create  a  positive  qualification,  which  it  is  necessary  for 
every  grand  juror  to  possess,  to  wit:  he  must  be  a  freeholder. 
The  point  in  controversy  is,  then,  narrowed  down  to  this  ques- 
tion: may  a  want  of  this  qualification  be  pleaded  in  avoidance 
of  the  indictment? 

1.  By  the  common  law,  it  was  competent  to  plead  *the  dis- 
qualification of  a  grand  juror,  in  bar  of  the  indictment,  notwith- 
standing advantage  might  have  been  taken  of  the  defect  by  chal- 
lenge. It  was  resolved  in  the  year  book  of  11  Henry  IV.  by  tb 
advice  of  all  the  judges,  that  one  outlawed  on  an  indictment  foi 
felony,  may  plead  in  avoidance  of  it,  that  one  of  the  indictors 
was  outlawed  for  felony.  Hawkins  b.  2,  c.  25,  sec.  18,  considers 
this  as  a  decision  at  common  law.  In  Sir  William  Withipole's 
case,  Cro.  Car.  134,  147,  the  defendant  pleaded  that  one  of  the 
indictors  was  outlawed,  but  because  ho  was  not  ready  to  prove 
the  fact,  and  the  court  conceived  it  be  only  for  the  purpose  of 
delay,  he  was  ordered  to  answer  over.  No  intimation  appears 
in  the  report,  that  the  plea  was  founded  upon  the  statute  of  11 
Henry  IV.  In  2  Hole's  P.  C.  155,  this  opinion  is  confirmed. 


SEPTEMBER  TERM,  1796.  337 

State  v.  Rockafellow. 

After  stating  that  if  one  of  the  indictors  be  outlawed,  though  in  a 
personal  action,  it  is  a  sufficient  plea  to  avoid  the  indictment;  and 
citing  the  decisions  in  the  year  book  of  11  Henry  IV.  Cro.  Car.  he 
adds,  "and  the  statute  of  11  Henry  IV.  fortifies  this;"  plainly  sup- 
posing these  decisions  to  have  been  by  the  common  law,  and  inti- 
mating that  the  statute  was  only  in  affirmance  of  the  common  law, 
though  it  created  some  new,  and  re-enacted  some  old  exceptions. 

2.  If  this  right  were  doubtful  at  common  law,  yet  where  the 
disqualification  of  the  juror,  as  in  this  case,  arose  from  an  express 
legislative  act,  no  question  can  remain  upon  the  subject.  All 
the  cases  cited  of  decisions  under  the  statute  of  11  Henry  IV, 
are  applicable  to  this  case,  and  conclusive  upon  it,  unless  they 
can  clearly  distinguish  the  provisions  of  that  statute  from  the  act 
of  assembly.  An  attempt  of  this  kind  has  been  made,  and  it  has 
been  argued,  that  as  the  former  declares  that  every  indictment 
found  contrary  to  it  should  be  "held  void,  revoked,  and  for 
ever  holden  for  none,"  whereas  no  such  annulling  or  negative 
clause  is  inserted  in  the  act  of  assembly,  which  simply  specifies 
a  qualification,  but  does  not  in  express  terms  render  the  defect 
of  it  a  fatal  objection  to  the  bill,  the  authorities  which  are  founded 
upon  the  former,  are  not  referable  to  the  latter.  It  is  contended 
therefore,  that  every  prisoner,  in  order  to  avail  himself  of  a 
non-compliance  with  the  directions  of  this  act,  must  do  it  by 
challenge  to  the  person  of  the  juror  before  bill  found.  , 

It  is  observable  in  examining  the  distinction  which  it  has  been 
attempted  to  draw,  that  the  statute  in  question  does  not  in  any 
part  of  it  point  out  the  manner  in  which  exception  is  to  be 
taken  on  account  of  a  non  compliance  with  its  provisions ;  and 
that  the  allowance  of  a  plea  is  by  a  legal  influence  of  the  judges, 
and  not  under  the  words  of  the  statute.  By  analogy  then,  it  fol- 
lows, that  as  the  act  of  assembly  requires  that  grand  jurors 
should  possess  certain  qualifications,  and  prescribes  no  manner 
in  which  advantage  is  to  be  taken  of  that  defect,  the  court  ought 
to  admit  it  to  be  done  also  by  plea.  Having  declared  who  shall 
be  grand  jurors,  the  negative  is  necessarily  implied ;  and  the  law 
is  as  clear  as  if  it  had  particularly  enacted,  that  every  bill  found 
by  persons  not  possessing  these  requisites  should  be  void.*  Tho 

*  This  doctrine  is  particularly  laid  down  in  Plowd.  206,  in  the  case  of  Stradlintj 
V.  Morgan.  See  also,  Q-edney  v.  Inhabitants  of  Tewksbury,  3  Mass.  307.  Jack- 
ton  v.  Bradt,  2  Caines  169. 

VOL.  I.  W 


338  NEW  JERSEY  SUPREME  COURT. 

State  v.  Rockafellow. 

distinction  which  formerly  prevailed  between  a  provision  by 
statute,  merely  affirmative,  and  one  which  is  prohibitory  ia  now 
exploded ;  and  in  modern  times  it  has  been  held,  more  in  con- 
formity to  reason  and  sound  policy,  that  a  statute  merely  direc- 
tory, particularly  when  it  respects  authorities  conferred  upon 
particular  persons,  though  it  contains  no  negative  clauses,  must 
bo  construed  negatively.  Numerous  decisions  upon  analogous 
cases  might  be  referred  to  in  our  own  courts,  in  which  this  doc- 
trine has  been  recognized.  A  return  of  a  road  made  by  a  sur- 
veyor, who  is  not  legally  qualified,  is  considered  as  a  nullity, 
though  no  negative  words  are  contained  in  the  act  of  assembly 
upon  that  subject. 

It  has  been  contended  also,  that  as  the  third  section  of  the  act 
in  question,  reserves  to  every  person  his  right  of  challenging  any 
juror  for  a  defect  of  the  qualifications  required  by  the  act,  the 
inference  is,  that  any  other  mode  of  taking  advantage  of  it  is 
thereby  excluded.  This  section,  however,  has  an  evident  and 
exclusive  reference  to  civil  cases,  and  to  the  challenges  that  are 
allowed  to  be  taken  to  petit  jurors.  The  term  plaintiff  and 
defendant,  are  there  used  as  the  persons  who  may  thus  challenge, 
and  this  cannot  be  intended  to  embrace  public  prosecutions. 
The  clause,  of  the  statute  of  articuli  super  chartas,  28  Edw.  I.  c. 
9,  which  ordains  that  "  the  sheriff,  &c.,  shall  render  double  dam- 
ages," extends  only  to  juries  returned  in  suits  between  party  and 
party,  because  it  says, he  shall  render  them  to  the  plaintiff,  which 
is  a  denomination  never  given  to  the  king  or  prosecutor,  where 
the  proceeding  is  by  way  of  indictment.  2  Hawk.  311,  b.  2,  c. 
25,  sec.  22.  F.  R.  B.  384,  (165.) 

The  mode  of  taking  exceptions  in  criminal  cases  is  left  as  it 
was  at  common  law,  and  the  whole  argument,  and  all  the  author- 
ities cited  on  the  other  side,  shew,  what  is  indeed  indisputable, 
that  a  challenge  may  be  made,  and  that  such  challenge  must  be 
made  before  indictment  found.  But  there  is  no  authority  which 
goes  to  prove  that  the  defendant  may  not  as  well  avail  himself 
of  the  defect  by  plea  to*  the  indictment.  According  to  the  cases 
and  authorities  that  have  been  referred  to,  it  was  competent  for 
the  prisoner  to  challenge  the  juror  on  the  ground  of  outlawry,  or 

.to  plead  the  fact  in  bar  of  the  bill. 

.The  proposition  laid  down  in  3  Sac.  Abr.  725,  is  couched  in 

..very  general  language,  and  from  the  note  subjoined,  it  would 


SEPTEMBER  TERM,  1796.  339 


State  v.  Rockafellow. 


seem  to  refer  more  particularly,  if  not  exclusively,  to  the  common 
law,  requisite  of  legalis  et  probus  homo,  than  to  a  specific  statute 
disqualification,  such  as  want  of  freehold.  It  is  said  this  excep- 
tion has  been  often  overruled,  because  prima  facie  all  men  shall 
be  intended  honest  and  lawful:  but  the  court  would  go  great 
lengths  indeed,  were  they  to  say  that  every  man  shall  be  pre- 
sumed to  be  a  freeholder,  and  worth  one  hundred  pounds.  Al- 
lowing however,  the  most  general  construction  that  can  be  put 
upon  the  language,  it  is  a  mere  dictum  of  the  abridger,  and  is 
unsupported  by  any  one  of  the  authorities  referred  to. 

Consequences  have  been  made  a  ground  of  argument  on  the 
part  of  the  prosecutor,  but  if  they  are  to  furnish  the  reasons  upon 
which  this  question  is  to  be  decided,  they  ought  to  be  examined 
on  both  sides.  One  most  glaring  inconvenience  will  result  from 
confining  the  accused  to  the  mode  which  has  been  suggested,  of 
taking  advantage  of  any  defect  in  the  juror,  by  a  challenge  to 
the  person,  which  is,  that  it  will  rarely  happen  that  an  opportunity 
will  be  afforded  him  of  exercising  this  important  privilege;  and 
that  unless  the  sheriff7  should  feel  himself  bound  conscientiously, 
and  legally,  to  comply  with  the  directions  of  the  law,  this  act  of 
assembly  will  be  virtually  a  dead  letter.  It  seldom  happens  that 
a  man  is  informed  that  an  indictment  is  preferred  against  him. 
It  has  been  said,  and  it  is  not  meant  to  question  this  principle  of 
law,  that  the  challenge  will  come  too  late  after  indictment  found  ; 
and  probably  it  would  come  too  soon  before  the  indictment  is 
laid  before  the  grand  jury.  Should  a  man  actually  be  present  in 
court,  at  the  time  when  the  jurors  are  sworn  in,  he  must  be 
compelled  to  challenge,  before  be  knows  that  any  accusation 
will  be  brought  forward  against  him,  and  in  every  case  before 
he  knows  that  the  bill  will  be  found. 

As  a  general  principle  then,  it  appears  most  consistent  with 
justice  and  equity,  and  with  the  policy  of  the  law,  to  leave  the 
fact  open  to  judicial  inquiry  upon  a  plea  to  the  indictment. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  "Without  a 
legal  presentment,  no  man  can,  under  our  administration  of  the 
laws,  be  tried  for  any  heinous  offence ;  and  certainly  without 
such  legal  presentment,  he  ought  not  to  be  called  upon  to  answer 
a  charge,  by  which  he  is  accused  of  one  of  the  most  enormous 
crimes  known  in  our  law. 


340  NEW  JERSEY  SUPREME  COURT. 

State  v.  Bockafellow. 

The  legislature  have  been  of  the  same  opinion,  and  have 
thought  proper  particularly  to  specify  the  requisites  which  it 
shall  be  necessary  for  the  persons,  who  execute  the  functions  of 
grand  jurors,  to  possess.  By  the  2d  section  of  the  law  in  ques- 
tion, (Allinson  24,)  it  is  declared,  that  every  person  who  shall  bo 
summoned  and  returned  to  servo  as  a  grand  juror,  shall  be  a 
freeholder,  and  be  possessed  of  real  or  personal  estate,  to  the 
value  of  one  hundred  pounds. 

So  positive  and  affirmative  a  description  as  this,  implies,  in  oui 
minds,  a  negative,  as  much  as  if  it  were  actually  expressed.  Thai 
the  indictor,  or  person  presenting  the  accusation  against  the 
prisoner,  was  not  such  a  person,  and  did  not  possess  the  qualifi- 
cations required  by  the  act  of  assembly,  is  surely,  in  its  nature, 
fairly  the  subject  of  a  plea  to  the  bill  of  indictment.  It  is  a 
reasonable  and  lawful  answer  to  an  accusation,  that  it  has  not 
been  preferred  in  the  manner,  or  by  the  persons,  which  the  law 
recognizes;  and  it  results  from  the  provisions  of  the  statute,  as 
clearly  as  if  it  had  been  explicitly  pointed  out. 

To  contend  that  the  accused  person  must  challenge  the  grand 
juror,  when  he  is  called  in  court  to  be  sworn,  would  be  just  as 
much  an  innovation  upon  the  act  of  assembly.  No  mode  is 
pointed  out  in  which  the  exception  is  to  be  taken,  and  wo  con- 
sider that  as  the  most  correct  mode  which,  without  being  other- 
wise peculiarly  repugnant  to  the  principles  or  policy  of  the  law, 
is  best  calculated  to  give  effect  to  its  humane  and  salutary  pro- 
visions. If  the  mode  by  challenge  is  to  be  adopted,  it  must  neces- 
sarily result,  that  nine  times  out  of  ten  the  benefit  of  a  statute, 
which  provides  a  security  for  our  lives,  fortunes,  and  reputation, 
by  requiring  that  an  indictment  shall  always  be  presented  by 
jurors,  respectable  for  their  character  and  standing  in  society, 
shall  bo  absolutely  lost  to  the  accused,  without  any  actual  neg- 
lect or  fault  of  his  own.  It  frequently  occurs,  that  the  accused 
is  altogether  ignorant  of  the  complaint  when  the  grand  jury  is 
called  :  if  ho  should  chance  to  be  present,  he  cannot  be  assured 
that  the  prosecution  will  proceed ;  and,  at  any  rate,  it  would  bo 
most  extraordinary  for  him  to  make  his  challenge  when  there  is 
no  certainty  that  his  case  will  come  under  their  cognizance.  In 
most  cases  of  a  capital  nature,  the  person  charged  with  the 
offence  is  actually  in  confinement,  and  has  not  the  physical 
capacity  to  make  his  challenges:  he  is  never  brought  up  and  con- 


SEPTEMBER  TERM,  1796.  341 

State  v.  Rockafellow. 

fronted  with  the  grand  jurors;  nor  is  he  served  with  a  list  of  the 
persons  who  are  to  compose  it ;  thus  circumstanced  it  would  be 
worse  than  a  form;  it  would  be  a  mockery  of  law  and  justice  to 
compel  him  to  avail  himself  of  exceptions  of  this  kind,  or  to  be 
considered  as  forever  waiving  every  error  in  the  proceedings  of 
the  sheriff. 

It  is  surely  the  proper  time,  and  certainly  early  enough,  for 
the  accused  to  except  to  the  qualifications  of  the  indictors  after 
the  bill  has  been  presented  against  him.  lie  then  knows,  or  can 
be  informed,  who  they  are:  he  has  time  to  ascertain  their  quali- 
fications, and  his  own  means  of  proving  the  exceptions  which 
he  may  be  advised  to  take:  and  we  are  unable  to  perceive  any 
grounds  upon  which  he  can  be  fairly  deprived  of  his  plea  to  their 
incompetency. 

In  the  case  before  the  court,  the  demurrer  admits  that  Quick 
was  not  a  freeholder,  and  that  without  him  the  bill  is  found  by 
eleven  jurors  only ;  the  presentment  is  therefore  void,  and  avoid- 
able by  pleading.* 

This  is  not  by  any  means  an  anomalous  case;  the  same  prin- 
ciple, or  one  very  similar  to  it,  has  been  before  recognized  in 
this  court.  The  legislature  have  directed,  that  in  the  case  of 
quakers,  an  affirmation  shall  have  the  same  legal  effect  as  an  oath. 
One  Sharp,  who  had  been  convicted  of  murder  at  the  Burling- 
ton Oyer  and  Terminer,  moved,  in  arrest  of  judgment,  that  it 
appeared  on  the  face  of  the  indictment  that  it  was  found  on  the 
oaths  of  part  of  the  jury,  and  the  solemn  affirmation  of  others, 
without  stating  these  last  "to  be  of  the  people  called  quakers;" 
the  judgment  was  arrested  upon  this  ground.  The  act  of  the 
legislature,  which  gives  the  affirmations  of  quakers  the  same 
validity  and  effect  as  an  oath,  does  not,  however,  in  express  terms, 
require  that  it  shall  appear  on  the  face  of  the  proceedings  them- 
selves that  the  affirmants  did  actually  belong  to  this  religious  per- 
suasion ;  nor  does  it  authorize  the  exception  to  be  taken  after 
conviction;  nevertheless  we  hold  ourselves  bound  to  allow  it.  In 
that  case  it  was  not  argued,  that  Sharp  ought  to  have  challenged 
the  jurors  who  were  affirmed,  on  the  ground  of  their  not  being 
quakers,  when  they  came  to  be  qualified ;  and  though  no  such 

*  It  would  seem,  from  2  Hawk.  312,  c.  25,  sec.  28,  that  if  one  of  the  grand  jury 
who  find  an  indictment,  be  within  any  one  of  the  exceptions,  he  vitiates  the  whole, 
though  never  so  many  unexceptionable  persons  joined  with  him  in  finding  it. 


342  NEW  JERSEY  SUPREME  COURT. 

State  v.  Rockafellow. 

answer  was  given,  it  is  equally  certain  that  it  would  have  been 
deemed  insufficient. 

Upon  the  whole,  the  court  entertain  no  doubt  upon  the  subject, 
and  think  that  judgment  must  be  given  for  the  prisoner  upon 
the  demurrer. 

Indictment  quashed. 

Rockafellow  being  afterwards  brought  up  before  the  court  on 
a  habeas  corpus. 

Frelinghuysen  and  R.  Stockton,  for  the  prisoner,  moved,  that 
he  might  be  admitted  to  bail. 

In  support  of  the  application,  they  laid  before  the  court  the 
affidavit  of  the  prisoner  himself,  as  well  as  of  several  other  per- 
sons, tending  to  establish  the  fact  of  his  innocence,  and  to  dis- 
prove the  relation  of  the  woman,  as  to  the  employment  of  force. 

They  contended,  that  this  court  had  a  discretionary  power  to 
admit  to  bail  in  all  cases,  and  cited  1  Com.  Dig.  658,  Sail  F.  1 ; 
Ib.  660,  662;  4  Black.  Com.  299,  as  to  the  general  power  of  tho 
court,  and  the  circumstances  under  which  this  discretion  would 
be  exercised.  The  case  of  The  King  \.  Bell,  Andrews  64,  was 
also  insisted  upon.  In  that  case,  the  prisoners  being  brought  up 
by  habeas  corpus,  their  own  affidavits  were  read  to  shew  that 
this  was  a  groundless  and  malicious  prosecution.  Other  persons 
testified,  that  two  sessions  had  elapsed  since  their  commitment, 
without  any  trial.  The  court  admitted  them  to  bail,  principally 
upon  the  ground,  that  there  having  been  an  assizes  since  their 
commitment,  they  might  have  been  tried  before:  and  Lee  C.  J. 
said  he  remembered  a  similar  case,  where  on  account  of  a  delay, 
the  defendant  was  bailed. 

This  case  was  also  referred  to,  to  shew  tho  propriety  of  receiving 
the  affidavits  of  the  parties  themselves,  in  cases  of  this  kind.  In  that 
case, Urling  objected  to  reading  the  affidavits  by  tho  defendants; 
but  tho  court  said,  they  might  make  use  of  any  means  for  receiving 
light  in  the  case,  in  order  to  guide  their  discretion,  though  they 
would  not  place  an  undue  credit  on  the  affidavits  of  the  parties. 

1  Com.  Dig.  660,  cites  Fitzpatrick's  case  from  1  Salk.  103, 
•where,  though  tho  commitment  was  for  high  treason,  tho  court 
admitted  to  bail  upon  the  single  ground,  that  a  sessions  was  past 
without  prosecution.  They  will  also  admit  to  bail  when  tho  mat- 


SEPTEMBER  TERM,  1796.  343 

State  v.  Rockafellow. 

ter  charged   appears   doubtful,     1  Sac.  Abr.  356.     The  King  v. 
Lord  Baltimore,  I  SI.  Rep.  648.    2  Hawk.  175-6,  c.  15,  sec.  80. 

Perhaps  there  is  no  one  crime  in  the  whole  extent  of  criminal  law 
which  can  be-so  easily  charged  as  that  alleged  against  the  prisoner 
— none  which  can  be  repelled  with  greater  difficulty;  (1  H.H.P. 
c.  633,  635)  and  consequently  there  is  none  in  which  the  court 
ought  more  cautiously  to  watch  over  and  protect  the  accused. 

Woodruff  (attorney-general,)  and  Leake  contra,  argued,  that 
under  the  act  of  assembly  of  22d  November,  1794,  (Pat.  129) 
persons  chargeable  with  rape  are  expressly  excluded  from  being 
admitted  to  bail,  which  extends  to  this  court  as  well  as  to  justices 
of  the  peace.  4  Black.  Com.  299. 

KINSEY  C.  J,  delivered  the  opinion  of  the  court.  We  are  not 
now  sitting  to  try  the  merits  of  the  case,  or  to  enter  into  any 
nice  inquiry  as  to  the  precise  weight  that  ought  to  be  allowed  to 
the  evidence  for  and  against  the  prisoner. 

This  court  may  bail  in  this  case,  notwithstanding  the  act  of 
assembly  of  the  22d  of  November,  1794,  which  only  prohibits 
the  sessions  and  justices  of  the  peace  from  admitting  to  bail  in 
cases  of  rape,  and  other  crimes  specified  in  the  act.  The  discre- 
tionary power  of  the  justices  of  the  Supreme  Court,  remain  un- 
impaired by  that  law,  and  their  right  to  bail  wrhen  they  think 
the  prosecution  groundless,  or  when  there  are  other  circum- 
stances which  render  it  proper,  still  continues  as  before. 

In  this  case,  however,  we  do  not  think  the  prisoner  has  made 
out  such  circumstances  as  would  entitle  him  to  this  advantage  in 
the  proper  exercise  of  our  diso  3tionary  powei's.  As  the  affida- 
vits stand  upon  both  sides,  the  evidence  of  his  guilt  is  very  strong. 
There  are,  indeed,  some  favourable  circumstances  which  no 
doubt  will  receive  the  fullest  consideration  of  the  jury  by  whom 
the  cause  will  be  eventually  tried  ;  but  we  do  not,  and  we  cannot, 
form  a  judgment  upon  the  effect  of  this  testimony,  or  how  far  it 
goes  to  exonerate  him  from  the  charge,  or  to  fix  the  crime  upon 
him.  This  is  a  matter  for  another,  and  a  constitutional  tribunal. 

Under  such  circumstances  we  should  scarcely  feel  ourselves 
warranted  in  granting  the  present  application ;  but  what  weigh* 
decisively  in  our  minds  against  it  is  his  escape  and  flight  from 
the  constable.  He  does,  indeed,  undertake  to  shew  that  he  had 


344  NEW  JEESEY  SUPEEME  COUET. 

Sherrard  v.  Olden. 

no  intention  of  flying  from  justice,  but  that  he  meant  to  surren- 
der himself  and  take  his  trial.  This  is  possible,  and  we  will  not 
say  that  ho  is  guilty  of  an  untruth  ;  but  the  fact  is,  be  did  not 
make  a  voluntary  surrender,  but  was  retaken  by  the  activity  and 
exertions  of  the  sheriff.  His  letters  to  the  sheriff  might  have 
been  designed  only  to  amuse  him  :  many  professions  were  made, 
but  no  voluntary  surrender. 

We  entertain  serious  doubts  as  to  the  truth  of  the  accusation  ; 
but  a  dubious  case,  attended  with  an  actual  escape  and  flight 
from  the  officer  of  justice,  decides  us  against  the  application. 
The  prisoner  has  been  retaken,  and  must  remain  in  custody  un- 
til discharged  by  due  course  of  law. 

Prisoner  remanded. 

CITED  IB  State  v.  Bickcy,  5  Hal.  83, 101.     Clark  v.  Collint,  3  Or.  473. 


[NOVEMBER  TERM,  1796.] 


SHERRARD  against  OLDEN  and  GARDNER. 

Where  every  reasonable  diligence  has  been  employed  by  a  defendant  to  pre- 
pare for  trial,  but  he  has  been  unable  to  attend  himself  on  account  of  sickness, 
and  an  important  witness  for  him  had  left  the  country  before  the  trial,  and  other 
circumstances  are  laid  before  the  court,  exonerating  the  party  from  laches,  and 
•hewing  a  real  and  equitable  defence,  and  the  merits  of  the  case  have  not  been 
investigated,  the  court  will  grant  a  new  trial. 

On  an  application  for  a  new  trial,  the  affidavits  of  the  parties  themselves  axe 
admissible  to  shew  the  grounds  on  which  it  is  made. 

This  cause  had  been  marked  for  trial  at  the  Hunterdon  Nisi 
Prius,  in  October,  one  thousand  seven  hundred  and  ninety-six, 
by  the  plaintiff,  and  regular  notice  had  been  served  on  the  attor- 
ney of  the  defendants.  Neither  of  the  parties  defendant,  how- 
ever, attended  the  court,  and  when  the  cause  was  called  on  for 
trial,  JJeake,  for  the  defendants,  applied  for  a  postponement,  upon 
the  affidavit  of  one  Joseph  Ireland,  who  swore  that  Gardner,  one 
of  the  defendants,  was  sick  in  Philadelphia  at  the  time:  that 
one  James  M'Corkle  was  a  material  witness  for  the  defendants ; 
that  he  had  sailed  for  the  East  Indies,  in  the  month  of  June  pro- 
ceding,  and  before  the  cause  was  at  issue,  but  was  expected  to 
return,  &c.  Notwithstanding  this  affidavit  however,  the  court 
ordered  on  the  trial,  and  no  further  opposition  being  made  b}r  the 
defendants,  a  verdict  passed  for  the  plaintiff  for  £800.  A  rule 


NOVEMBER  TERM,  1796.  345 

Sherrard  v.  Olden. 

had  been  obtained  upon  the  plaintiff,  to  shew  cause  why  a  new 
trial  should  not  be  granted,  and  in  support  of  the  rule,  Leake, 
for  the  defendants,  produced  the  deposition  of  Olden  and  Gardner, 
themselves,  from  which  it  appeared,  that  there  had  formerly 
existed  a  partnership  between  the  two  defendants,  which  was 
now  dissolved,  and  that  Gardner  was  the  real  defendant,  who 
was  alone  entrusted  in  the  cause.  That  the  attorney  for  them  on 
the  record,  was  unable  to  attend  at  the  trial,  and  in  consequence 
of  the  short  notice  of  trial,  which  though  regulai-ly  transmitted 
by  the  plaintiff's  counsel,  did  not  reach  the  defendants  until 
three  or  four  days  before  the  trial  ^came  on,  and  the  sickness  of 
both  of  them,  one  at  Princeton,  and  the  other  at  Philadelphia, 
the  counsel  who  appeared  for  them  at  the  Nisi  Prius,  was  not 
retained  until  two  days  before  the  trial  came  on.  Neither  of  the 
defendants  knew  of  the  incapacity  of  the  other  to  attend. 

In  addition  to  these  circumstances,  it  was  further  stated,  that 
a  rule  was  taken  in  September  Term,  upon  the  defendants,  for  a 
plea  to  the  action,  and  that  the  cause  was  only  then  put  at  issue, 
and  there  was  no  expectation  that  it  would  come  on  for  trial  at 
so  early  a  period.  That  M'Corkle,  the  witness  whose  absence 
was  stated  as  a  ground  for  postponing  the  trial,  was  a  clerk  in 
the  counting-house  of  the  defendants,  at  the  time  the  transaction 
occurred,  upon  which  the  suit  was  brought,  and  was  intimately 
acquainted  with  all  its  circumstances.  That  he  had  gone  to  sea 
in  the  month  of  June  last,  before  the  cause  was  at  issue,  and 
before  there  was  any  expectation  that  the  trial  would  be  brought 
on  during  his  absence;  and  that  his  return  was  confidently  ex- 
pected in  January  next.  That  there  was  a  real  and  substantial 
defence  to  the  action,  and  that  the  defendants,  without  any 
negligence  or  want  of  exertion  on  their  part,  had  been  taken 
by  surpi-ise,  and  a  verdict  had  passed  against  them  for  a  largo 
sum,  without  their  having  an  opportunity  of  making  a  defence. 

Leake  and  Aaron  Ogden,  for  the  defendants,  and  in  support 
of  the  rule,  contended,  that  from  the  facts  which  had  been  laid 
before  the  court,  abundant  cause  had  been  shewn  why  a  new 
trial  ought  to  be  awarded.  Applications  of  this  kind  are  made 
to  the  discretion  of  the  court,  upon  the  particular  circumstances 
of  each  case,  and  it  has  rarely  occurred  that  a  stronger  case  in 
every  point  is  made  out. 


346  NEW  JERSEY  SUPREME  COURT. 

Sherrard  v.  Olden. 

In  Hex  v.  DEon,  3  Sun.  1513 ;  1  Bl  Rep.  510,  £  C.;  5  Com. 
Dig.  505,  tit.  Pleader  R.  17,  the  correct  rule  is  laid  down  by  the 
court ;  and  they  say  that  no  trial  shall  be  hurried  on,  so  as  to 
do  injustice  to  the  defendant.  "We  have  brought  ourselves  fairly 
within  this  rule. 

Lord  Mansfield  says,  in  Bright  v.  Eynon,  1  Burr.  390-5,  that 
new  trials  ought  to  be  granted  when  the  justice  of  the  case 
demands  it ;  and  he  adopts  the  same  principle  in  Farewell  v. 
Chaffey,  1  Burr.  54.  Here  it  is  apparent  to  the  court,  that  the 
trial  has  been  hurried  on  in  such  a  manner,  that  the  defendants 
have  not  had  an  opportunity  of  being  heard;  and  this,  accord- 
ing to  Lord  Mansfield,  is  a  sufficient  reason  for  granting  a  new 
trial. 

The  evidence  of  M'Corkle,  a  person  acquainted  with  all  the 
circumstances  of  this  transaction,  has  been  lost  to  us  without 
any  inadvertence  or  omission  of  the  defendants.  This  in  War- 
ren v.  Fuzz,  6  Mod.  22,  was  considered  as  a  sufficient  ground  for 
awarding  a  new  trial.  The  same  doctrine  is  laid  down  in  11 
Mod.  1.  Until  a  cause  is  at  issue,  it  is  impossible  for  a  party  to 
know  what  will  be  the  point  in  controversy,  and  it  is  not  incum- 
bent upon  him  to  prepare  his  testimony.  Here,  before  the  cause 
was  at  issue,  the  witness  upon  whoso  evidence  principal  reliance 
was  placed,  left  the  country ;  his  absence  was  not  expected  to  bo 
of  any  very  long  continuance,  and  no  laches  are  to  be  attributable 
to  the  defendants  for  not  anticipating  and  providing  against  his 
absence.  1  Sellon  418.  Imp.  C.  B.  369. 

Another  material  question  is,  have  the  real  merits  of  this  case 
been  investigated?  It  is  an  important  feature  in  this  case,  that 
the  party  has  had  no  opportunity  to  bring  the  question- fairly 
before  the  jury;  ho  has  been  condemned  unheard,  to  pay  a  largo 
sum  of  money,  which  the  court  are  to  presume  from  the  affidavits 
now^aid  before  them,  ho  was  not  bound  in  equity  and  justice  to 
pay.  This  was  held  in  D'Ayrolles  v.  Howard,  3  Burr.  1385,  a 
sufficient  ground  for  granting  a  new  trial.  In  5  Com.  Dig.  506, 
it  is  said,  if  the  merits  have  not  been  tried  because  the  plaintiff 
could  not  give  material  matter  in  evidence  on  the  issue  joined, 
and  therefore  a  verdict  against  him,  the  court  will  sot  it  aside, 
though  it  was  right  on  the  evidence  given.  There  can  be  no 
difference  in  principle,  whether  the  defendant  was  precluded 
from  giving  this  matter  in  evidence,  on  account  of  the  peculiar 


NOVEMBER  TERM,  1796.  347 

Sherrard  v.  Olden. 

nature  of  the  action,  or  the  rules  of  pleading;  or  whether  it  arose 
from  a  physical  incapacity  to  produce  it  at  the  trial. 

But  the  defendants  here  were  surprised.  It  is  not  pretended 
that,  as  regards  the  plaintiff,  the  proceedings  were  not  regular, 
and  the  notice  given  in  time,  otherwise  this  would  be  an  ample 
ground  for  setting  aside  the  verdict.  But  the  defendants  did  not 
receive  this  notice  in  time  to  enable  them  to  come  prepared  to 
the  trial ;  so  far  as  regards  them  there  was  an  actual  surprise. 
It  is  stated  in  5  Com.  Dig.  505,  to  be  a  ground  for  a  new  trial, 
that  the  counsel  or  witnesses  were  absent  by  surprise,  and  2 
Salk.  545,  pi.  7,  is  cited  in  confirmation  of  the  doctrine.  Buller 
in  27  R.  120,  seems  to  consider  surprise,  or  anew  discovery  since 
the  trial,  as  furnishing  a  ground  for  setting  aside  the  verdict. 

When  a  verdict  is  manifestly  against  equity,  and  obtained 
against  defendant  from  inadvertence  in  not  being  prepared  with 
evidence,  court  will  grant  a  new  trial.  2  Sellon's  Pr.  489. 
Nothing  can  be  more  unfair,  or  better  entitle  a  party  to  the  con- 
sideration and  favour  of  the  court,  than  the  circumstance,  that 
his  cause  has  been  adjudged  without  his  being  heard.  4  Bl. 
Com.  282-3. 

L.  If.  Stockton  and  R.  Stockton,  contra.  There  are  two  singu- 
lar and  extraordinary  features,  which  principally  distinguish 
this  case  from  those  which  usually  occur.  According  to  the 
shewing  of  the  defendants  themselves,  the  conduct  of  the  plain- 
tiff has,  throughout,  been  fair  and  regular:  there  is  no  pretence 
of  any  impropriety  on  his  side.  2.  All  the  facts  upon  which 
this  application  is  founded,  depend  exclusively  upon  the  testi- 
mony of  the  defendants  themselves. 

Regularly,  and  in  ordinary  cases,  the  testimony  of  parties  to  a 
cause  is  never  admitted  to  influence  the  minds  of  the  court  or 
jury.  Every  fact  ought  to  be  established  by  impartial  and  disin- 
terested witness,  and  it  is  a  sufficient  ground  to  set  aside  a  ver- 
dict, that  the  parties  have  been  allowed  to  prove  their  own  case. 
If  their  evidence  could  not  have  been  admitted  to  obtain  a  ver- 
dict, the  same  rule  ought  to  prevent  its  admission,  in  order  to 
Bet  that  verdict  aside.  In  Roberts  v.  Hartley,  Dougl.  311,  this 
doctrine  was  laid  down  by  Lord  Mansfield,  who  said,  we  can- 
not grant  a  new  trial  on  the  affidavit  of  the  plaintiff,  who  could 
not  be  examined  at  the  trial.  Indeed  the  doctrine  is  monstrous, 


348  NEW  JERSEY  SUPilEME  COUET. 

Sherrard  v.  Olden. 

and  if  adopted  would  bo  found  pregnant  with  the  most  perni- 
cious consequences:  new  trials  would  be  as  frequent  as  verdicts-, 
if  they  were  to  depend  upon  the  conscience  or  testimony  of  the 
losing  party. 

With  respect  to  the  evidence  of  Ireland,  it  can  scarcely  be 
considered  as  an  exception  to  the  preceding  remark;  that  affi- 
davit was  prepared  previous  to  the  trial,  and  was  the  foundation 
of  the  application  for  a  postponement.  Its  sufficiency  came  at 
that  time  before  the  court,  who  held,  that  it  did  not  furnish  suffi- 
cient reasons  for  putting  off  the  trial.  If  that  decision  was  legal, 
and  upon  that  there  can  scarcely  exist  a  question,  it  must  bo  put 
out  of  the  case  altogether  in  the  present  motion. 

But  independent  of  these  objections  to  the  manner  of  proving 
the  facts,  it  is  contended,  that  the  circumstances  themselves  do 
not  lay  a  sufficient  ground  for  a  new  trial.  Full  and  regular  no- 
tice of  trial  was  given  by  the  plaintiff,  and  no  objections  are  even 
intimated  that  it  was  insufficient.  M'Corkle,  whose  testimony 
was  considered  so  important,  appears  to  have  been  sent  out  of 
the  country  upon  a  long  and  precarious  voyage  by  the  defend- 
ants themselves.  If  the  cause  was  not  then  at  issue,  it  was 
known  that  his  testimony  would  be  wanted.  The  ground  of  the 
action  was  certain,  or  the  defendants  could  have  reduced  it  to 
certainty.  The  disposition  of  the  witness  might  have  been  taken 
de  bene  esse,  and  it  is  hardly  to  be  supposed  that  if  he  was  the 
only  witness  to  the  transaction,  so  important  to  their  defence  as 
it  is  now  alleged,  that  they  would  have  permitted  him  to  go, 
much  less  have  themselves  sent  him  upon  a  voyage  which  must 
necessarily  consume  so  much  time,  and  in  which  so  many  acci- 
dents might  have  intervened  to  prevent  him  from  ever  returning, 
without  taking  those  steps  which  prudence  would  have  dictated, 
to  prevent  any  injurious  consequences  to  themselves  from  his 
absence.  At  any  rate,  if  they  have  been  so  negligent  in  attend- 
ing to  their  own  interests,  it  can  scarcely  furnish  a  ground  for 
them  to  come  forward  at  this  late  hour,  and  apply  to  have  a 
verdict  deliberately  and  regularly  taken,  set  aside  in  consequence 
of  this  culpable  and  voluntary  inattention. 

Another  objection,  however,  exists  to  this  application.  The 
party  ought  not,  at  least,  to  request  the  court  to  rely  implicitly 
upon  his  general  assertions  with  regard  to  the  materiality  of 
M'Corkle's  testimony.  Wherever  a  party  comes  after  verdict, 


NOVEMBER  TEEM,  1796.  349 


Sherrard  v.  Olden. 

and  applies  to  have  it  opened  on  account  of  material  evidence 
which  he  was  unable  to  have  at  the  trial,  it  is  his  duty  to  state 
the  facts  which  the  witness  can  testify  to,  in  order  to  enable  the 
court  to  determine  whether  or  not  it  is  material.'  In  the  case 
cited  by  the  defendants'  counsel,  from  2  Salk.  645,  it  is  particu- 
larly stated,  that  in  Coppirfs  case  the  application  was  refused 
upon  the  ground,  that  the  affidavit  did  not  state  what  the  wit- 
ness knew,  and  would  answer  so  that  the  court  might  judge  of 
it,  and  how  it  was  material.  2  Term  Rep,  123. 

In  the  case  of  D'Ayrolles  v.  Howard,  one  of  the  grounds  upon 
which  the  verdict  was  set  aside  was,  that  both  parties  desired  to 
have  the  real  merits  of  the  cause  investigated,  which  it  appears 
was  not  done  on  the  first  trial. 

Ogden  and  Leake  in  reply.  All  the  allegations  contained  in 
the  depositions  of  the  defendants,  must  now  be  taken  as  true. 
No  counter  evidence  has  been  produced,  and  no  attempt  has 
been  made  to  question  fheir  truth,  or  even  to  intimate  a  doubt 
of  the  kind.  If,  then,  we  lay  before  the  court  a  probable  ground, 
it  is  sufficent  upon  a  motion  of  this  kind.  All  the  circumstances 
of  the  case  are  not  to  be  detailed  and  minutely  scanned;  the 
province  of  the  jury  is  not  to  be  invaded  by  weighing  the  effect 
and  credibility  of  testimony,  or,  in  other  words,  the  cause  is  not 
to  be  regularly  and  fully  tried  on  a  motion  to  set  aside  a  verdict. 

In  granting  new  trials,  the  court  knows  no  limitation,  (except 
in  some  particular  cases)  but  will  either  grant  or  refuse  them, 
as  it  will  tend  to  the  advancement  of  justice.  1  Sellon  485.  6 
Term  Hep.  633  Motions  for  new  trials,  (says  Judge  Buller,  2 
Term  Rep.  120)  have  been  yery  much  encouraged  of  late  years, 
and  I  shall  never  discourage  them  ;  for  nothing  tends  more  to 
the  due  administration  of  justice,  or  even  to  the  satisfaction  of 
the  parties  themselves,  than  applications  of  this  kind. 

It  is  objected,  however,  that  the  affidavits  of  the  defendants 
themselves  are  inadmissible  in  an  application  for  a  new  trial,  arid 
the  case  of  Roberts  v.  Hartley  has  been  cited  as  confirming  this 
position.  If  the  language  of  Lord  Mansfield  is  to  be  construed 
in  this  broad  and  unqualified  manner,  it  is  contradicted  by  every 
day's  practice.  It  is  not  contended,  that  the  court  will  give  the 
same  credit  to  them  as  to  the  depositions  of  disinterested  per- 
Bons,  but  they  are  entitled  to  some  sort  of  respect,  and  when 


350  NEW  JERSEY  SUPREME  COURT. 

Sherrard  v.  Olden. 

they  state  circumstances  particularly  within  the  knowledge  of 
the  parties,  they  arc  the  best  evidence  which  can  be  procured. 

AVith  respect  to  the  objection,  that  we  ought  to  state  the 
evidence  which  it  is  expected  M'Corkle  will  prove,  it  would  bo 
unprecedented.  (See  Richardson  v.  Backus,  1  John.  59.)  Whether 
the  court  would  permit  it  is  questionable,  it  is  certain  that  they 
will  not  require  it. 

The  principle  question  to  be  considered  is,  whether,  if  the  facts 
now  laid  before  the  court  had  been  brought  forward  at  the  trial  as  a 
ground  for  postponement,  it  would  not  have  been  put  off.  Upon  this 
there  can  surely  be  no  doubt.  All  the  evidence  now  adduced  is,  as 
to  facts  which  existed  then,  and  does  not  relate  to  any  new  matter. 
If  the  court,  with  a  full  knowledge  of  these  circumstances,  would 
have  postponed  the  trial  of  the  cause,  and  if  the  defendants  were 
prevented  by  their  own  bodily  sickness  from  shewing  that  they 
were  legally,  and  according  to  the  rules  of  practice,  entitled  to  such 
postponement,  the  court  will  not  now  compel  them  to  suffer  for 
causes  over  which  they  had,  and  could  have,  no  control. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  We  are  of 
opinion,  that  in  all  cases  of  this  kind  the  affidavits  of  the  parties 
are  admissible  to  shew  the  grounds  upon  which  the  application  is 
made.  This  is  conformable  to  the  practice,  and  we  are  unable 
to  perceive  upon  what  principles  it  can  be  objected  to.  In  the 
case  which  has  been  cited  from  Douglass  it  is  observable,  that 
the  affidavit  of  the  plaintiff,  which  was  offered,  went  to  contra- 
dict an  important  fact  in  the  case  upon  which  the  jury  had 
already  passed.  Instead  of  shewing  that  the  jury  had  not  heard 
his  case  upon  the  merits,  or  that  they  ought  not  to  have  been 
admitted  to  take  the  matter  up,  it  was  to  shew  that  they  had 
made  an  erroneous  decision ;  and  Lord  Mansfield  very  properly 
rejected  testimony  of  this  sort.  The  generality  of  the  language 
must  be  restrained  by  a  reference  to  the  circumstances  under  w  Inch 
it  was  uttered.  In  D' Eon's  case,  the  same  judge  admitted  the  affi- 
davit of  the  defendant  upon  the  question  of  postponement,  which 
is  similar,  and  no  objection  of  this  kind  was  intimated,  though 
the  deposition  was  fully  canvassed,  and  adjudged  insufficient.  In 
Oswald  v.  Legh,  1  Term  Hep.  270,*  which  was  an  application 

*See,  also,  4  Taunt.  Feizc  v.  Parkinson,  where  the  affidavit  of  plaintiff  is 
admitted  without  objection.  The  court  decide,  in  that  case,  that  they  would 


NOVEMBER  TERM,  1796.  351 


Sherrard  v.  Olden. 


for  a  new  trial,  the  court  expressly  desired  the  defendant  to 
make  his  affidavit  to  the  circumstances,  which  was  .done ;  and 
though  his  prayer  was  refused,  it  was  because  the  facts  which 
he  stated  were  insufficient. 

It  is,  however,  unquestionably  the  duty  of  the  court  to  weigh 
the  testimony  of  parties  with  peculiar  care.  The  same  implicit 
reliance  will  not  be  placed  upon  their  statements  as  upon  those 
of  more  disinterested  persons;  and  we  shall  always  be  cautious 
as  to  the  degree  of  confidence  which  we  repose  in  them,  particu- 
larly when  any  doubts  are  intimated  as  to  their  credibility  or 
character. 

At  the  trial  of  this  cause,  the  request  for  postponement  was 
refused,  not  because  there  did  not  actually  exist  sufficient  reasons 
to  warrant  the  court  for  putting" it  off,  but  because  sufficient 
grounds  did  not  appear.  It  was  not  then  shown  that  the  defend- 
ants had  used  due  diligence ;  that  they  were  innocent  of  any 
neglect,  But  we  now  know  that  the  reasons  why  these  matters 
were  not  proved,  was,  that  one  of  the  parties  lay  sick  in  Phila- 
delphia, and  the  other,  who  resided  in  Princeton,  was  unable  tq 
attend;  that  each  was  ignorant  of  the  situation  of  the  other; 
that  they  did  what,  under  the  particular  circumstances  in  which 
they  were  placed,  it  was  reasonable  to  require  of  them;  and 
that  no  exertions  on  their  part  would  have  availed  to  bring 
M'Corkle,  who  is  sworn  to  be  a  material  witness,  to  the  trial. 

Considering,  therefore,  all  these  circumstances,  that  the  de- 
fendants have  been  guilty  of  no  laches,  but  that  a  verdict  has 
gone  against  them  for  a  large  amount  in  an  action  to  which  they 
swear  they  have  a  good  and  substantial  defence,  we  think  tho 
interests  of  justice  require  that  they  should  have  an  opportunity 
to  try  the  question  upon  its  merits  by  another  trial. 

Rule  made  absolute. 

CITED  IN  Oyden  v.  Robertson,  3  Gr.  125. 

not  grant  a  new  trial  upon  the  mere  affidavit  of  one  party  contradicting  the 
witnesses  on  the  other  side. 


352  NEW  JERSEY  SUPREME  COURT. 


Bergen  v.  Clarkson. 
BERGEN  against  CLARKSON. 

OH  CEBTIORARI. 

Where  the  freeholders  and  inhabitants  of  a  cily  are  empowered  by  the  char- 
ter of  incorporation,  to  raise  by  tax,  in  the  manner  directed  by  the  charter, 
ench  sums  of  money  as  the  exigencies  of  the  city  may  require,  a  tax  imposed 
for  the  purpose,  as  declared  in  the  law,  of  raising  money  to  assist  the  county 
in  building  a  court  house,  on  condition  that  the  ooard  of  justices,  Ac.  would 
contract  to  allow  the  corporation  the  right  of  the  buildings  which  might  be 
erected,  is  not  authorized  by  the  charter,  and  the  law  by  which  it  is  laid  is  void ; 
the  board  of  justices,  Ac.  cannot  legally  enter  into  any  such  stipulation,  and 
therefore  the  foundation  of  the  transaction  fails. 

When  the  common  council  calls  an  extraordinary  meeting  of  the  freeholders,  Ac. 
it  seems  it  is  bound  to  state  particularly  the  objects  of  the  call :  but  if  it  does  speci  fy  a 
particular  purpose,  a  law  imposing  a  tax  for  a  certain  object,  passed  at  such  meet- 
ing, unless  it  was  stated  among  the  reasons  for  calling  the  meeting,  is  void. 

All  proceedings  under  the  authority  of  a  void  by-law,  imposing  a  tax,  are 
themselves  void,  and  such  law  is  no  justification  of  the  acts  of  the  person  who 
undertakes  to  execute  it. 

When  a  tax  has  been  legally  assessed  by  a  corporation  clothed  with  competent 
powers,  the  proportion  of  it  which  each  individual  is  bound  to  pay,  becomes  a  debt 
which  may  be  recovered  in  an  action  at  the  suit  of  the  corporation;  but  unless 
they  are  expressly  authorized  by  the  charter,  summary  proceedings  by  distress 
ana  warrant  of  sale  to  collect  this  tax,  though  directed  by  a  by-law,  are  void ;  and 
such  by-law  is  no  justification  in  an  action  of  trespass  brought  against  the  officer 
executing  the  process,  at  the  suit  of  a  person  whose  goods  nave  been  seized. 

This  was  an  action  of  trespass,  brought  by  Bergen  against 
Clarkson,  before  the  justice  to  which  the  original  defendant  had 
pleaded  a  special  justification. 

The  case,  as  it  came  before  the  court,  was  as  follows: — By  the 
eighth  section  of  the  act  of  the  legislature  of  New  Jersey,  incor- 
porating the  city  of  New  Brunswick,  (Paterson  56)  it  is  enacted, 
"that  the  freeholders  and  inhabitants  of  the  said  city  of  New 
Brunswick,  shall,  by  plurality  of  voices,  at  their  annual  meeting 
for  electing  the  officers  of  the  said  city,  vote  such  sums  of 
money  as  they  may  think  necessary  for  the  exigencies  of  the  said 
city,  which  sum  shall  be  assessed  upon  the  inhabitants  by  the 
assessor,  at  his  discretion,  and  collected  by  the  collector  at  such 
time,  and  be  paid  and  disposed  of  in  such  manner,  as  the  com- 
mon council  shall  direct,  and  if  no  sum,  or  an  insufficient  sum, 
shall  bo  then  voted  to  be  raised,  and  the  interest  of  the  city 
require  it,  the  common  council  are  hereby  authorized  to  call  a 
meeting  of  the  freeholders  and  inhabitants,  by  advertisement  or 
otherwise,  and  to  propose  to  them  the  sum,  in  their  opinion 
necessary  to  be  raised,  and  whatever  sum  the  freeholders  and 
inhabitants  shall,  by  plurality  of  voices,  vote  to  bo  raised,  shall  be 
assessed  and  collected,  paid  and  disposed  of,  in  manner  afore- 


NOVEMBER  TERM,  1796.  353 

Bergen  v.  Clarkson. 

said.  Provided  always,  that  if  any  person  should  think  him  or 
herself  aggrieved  by  any  assessment  made,  as  is  herein  before 
directed,  he  or  she  may  appeal  to  the  common  council,  who  are 
hereby  authorized  and  required  to  hear  and  redress  such  griev- 
ances, if  any  there  be  in  their  opinion.  And  provided  also,  that 
no  tax  shall  be  levied  upon,  or  collected  from,  any  person  who, 
from  his  local  situation  beyond  the  line  of  the  buildings  in  the 
said  city,  is  not  interested  in  the  good  purposes  for  which  such 
tax  is  designed." 

By  an  ordinance  made  the  twenty-fourth  day  of  November, 
one  thousand  seven  hundred  and  eighty-five,  "directing  the 
mode  of  assessing  and  collecting  the  taxes  levied  on  the  inhabit- 
ants of  the  city,"  it  is  ordered,  "that  the  assessor  shall,  within 
fifteen  days  after  receiving  notice  of  the  sum  to  be  raised,  de- 
liver the  duplicate  and  assessment  made  thereon  to  the  collector, 
who,  within  thirty  days  thereafter,  is  to  collect  the  money  and 
pay  it  to  the  treasurer;  and  at  the  same  time  to  deliver  in  a  list 
of  the  delinquents  to  the  president  or  one  of  the  directors,  who 
shall,  at  the  expiration  of  ten  days,  issue  his  warrant  against 
such  delinquent:  provided  that  the  collector  shall  not  return  any 
one  as  delinquent,  unless  he  has,  at  least  once,  called  at  his 
place  of  abode  for  the  tax,  and  left  the  amount,  of  which  he 
shall  make  oath." 

On  the  twentj'-sixth  of  March,  one  thousand  seven  hundred 
and  ninety-three,  at  a  meeting  of  the  common  council,  it  was 
resolved  to  offer  a  grant  of  £300  to  the  board  of  justices  and 
freeholders,  of  the  county  of  Middlesex,  for  the  use  of  the  said 
county,  to  be  applied  towards  the  building  of  a  court-house  and 
gaol  in  the  said  city,  on  condition,  that  the  board  would  grant 
to  the  corporation  the  use  of  those  buildings,  for  transacting  tho 
public  business  of  the  corporation,  not  interfering  with  the  state 
or  county  use  of  them. 

On  the  first  of  April,  one  thousand  seven  hundred  and  ninety- 
three,  at  a  meeting  of  the  common  council,  the  committee,  who 
had  been  appointed  to  wait  upon  the  board  of  justices,  &c.  with 
the  foregoing  resolution,  reported  a  resolution  passed  by  tho 
board,  accepting  of  the  offer  on  the  term's  and  conditions  pro- 
posed. 

On  the  twenty-fifth  of  January,  one  thousand  seven  hundred 
and  ninety-three,  at  a  meeting  of  the  common  council,  it  was 

VOL.  I.  X 


354  NEW  JERSEY  SUPREME  COURT. 

Bergen  v.  Clarkson. 

resolved,  to  call  a  meeting  of  the  freeholders  and  inhabitants  of 
the  corporation,  on  Saturday,  the  second(  of  February,  one  thou- 
sand seven  hundred  and  ninety-three,  "for  the  purpose  of  con- 
sidering the  propriety  of  raising  money  by  tax,  in  order  to 
become  proprietors  in  the  bridge  to  be  erected  over  the  Rariton 
river,  in  this  city:"  it  was  also  directed,  that  the  clerk  should 
advertise  the  resolution,  &c. 

The  meeting  was  held  on  the  second  of  February,  one  thou- 
sand seven  hundred  and  ninety-three,  pursuant  to  the  notice 
given  by  advertisement,  by  order  of  the  common  council.  At 
this  meeting  it  was  voted  that  the  sum  of  £300  be  raised,  to  be 
applied  towards  building  a  court-house  and  gaol,  on  the  condi- 
tions stated  in  the  resolution  of  the  common  council. 

March  third,  one  thousand  seven  hundred  and  ninety-three, 
at  a  meeting  of  the  common  council,  the  president  was  directed 
to  issue  an  order  for  assessing  the  above  mentioned  sum  of 
money  upon  the  inhabitants  and  freeholders  of  the  corporation. 

April  twenty-second,  and  April  twenty-ninth,  an  ordinance 
was  proposed  in  the  common  council,  and  passed,  directing  the 
time  .of  assessing  and  collecting  this  sum  of  £300 ;  by  which 
one  moiety  was  directed  to  be  assessed  and  collected  by  the 
eighth  of  May  following,  and  the  other  moiety  by  the  eighth  of 
August  ensuing. 

The  corporation  limits  of  New  Brunswick,  as  described  in  the 
act  of  incorporation,  embrace  parts  of  the  two  counties  of  Mid- 
dlesex and  Somerset ;  and  the  tax  in  question  was  assessed 
upon  all  the  freeholders  and  inhabitants  of  the  city,  as  well 
those  living  in  Somerset,  as  those  in  Middlesex  county. 

Among  others  returned  by  the  marshal  as  delinquents,  in  the 
non-payment  of  the  portion  of  the  tax  assessed  upon  them,  was 
Clarkson,  who  resided  in  that  part  of  the  city  which  is  con- 
tained in  the  county  of  Somerset.  In  consequence  of  his  omis- 
sion or  refusal  to  pay,  a  warrant  of  distress  and  sale  was  issued, 
by  one  of  the  directors,  against  his  goods,  by  virtue  and  under 
the  authority  of  which,  Bergen,  the  defendant  below,  the  mar- 
shal of  the  city,  made  a  seizure  of  the  goods  of  Clarkson,  and 
Bold  them  to  the  amount  of  tho  tax  assessed  upon  him.  « 

This  was  an  action  of  trespass  brought  against  Bergen,  for 
this  seizure  and  sale,  and  a  jury  being  regularly  empannelled, 
and  the  act  of  incorporation,  the  ordinances  of  the  common 


NOVEMBER  TERM,  1796.  355 

Bergen  v.  Clarkson. 

council,  &c.  being  relied  upon  by  the  defendant  as  a  justification, 
the  jury  gave  a  verdict  for  the  plaintiff,  for  the  full  amount  of  the 
sales  made  by  Bergen,  and  for  this  sum  judgment  was  entered  by 
the  justice. 

Leake  and  E.  Stockton,  for  the  plaintiff  in  certiorari,  insisted,  that 
the  facts  set  forth  by  him,  amounted  to  a  full  and  legal  justification 
of  his  proceedings,  and  exonerated  him  from  every  species  of  lia- 
bility, in  consequence  of  what  he  had  done.  They  contended — 

1.  That  the  tax  in  this  case  was  legally  voted  and  assessed  upoii 
the  city.  The  objects  for  which  the  money  was  directed  to  be 
raised,  was  one  peculiarly  calculated  to  benefit  the  corporation. 
By  assisting  the  board  of  justices  and  freeholders  of  the  county, 
in  erecting  a  court-house  and  gaol,  the  city  would  be  enabled,  at 
comparatively  an  inconsiderable  expense,  to  furnish  themselves 
with  buildings  necessaiy  for  their  own  use,  and  at  the  same  time 
to  reap  all  the  advantages  which  must  result  to  the  town,  from 
containing  within  itself'the  court-house  and  public  buildings  of 
the  county.  A  measure  of  this  kind  will  ever  prove  mutually 
beneficial  to  both  the  parties  interested.  Each  contributes  a  por- 
tion of  the  expense,  and  neither  party  has  any  occasion  for 
buildings  of  the  nature  of  a  court  or  town-house,  except  at  reg- 
ular and  distant  intervals.  A  tax  raised  then,  for  such  purposes 
is  strictly  and  legally  raised  for  the  exigencies  and  interest  of 
the  city,  and  therefore  within  the  powers  of  the  corporation. 

If  the  object  of  the  tax  then,  is  legal  and  unobjectionable,  so, 
also,  is  the  manner  in  which  the  authority  was  exercised.  It  was 
voted  by  the  inhabitants  in  a  I'egular  manner,  at  a  town-meeting 
lawfully  convened  by  order  of  the  common  council,  and  notified 
by  public  advertisement.  It  was  assessed  in  the  usual  manner, 
pursuant  to  the  terms  of  the  ordinance  of  November  twenty- 
fourth,  one  thousand  seven  hundred  and  eighty-five,  which  had 
been  uniformly  followed  and  acquiesced  in.  The  warrant  from 
the  director,  to  distrain  and  sell  the  goods  of  the  delinquent,  to 
the  amount  of  his  proportion  of  the  tax,  was  in  conformity  with 
the  established  usage  of  the  city,  since  the  original  incorpora- 
tion ;  in  every  respect  conformable  to  the  mode  of  collecting 
Btote  taxes,  and  in  itself  a  legal  and  proper  mode  of  compelling 
an  individual  to  pay  his  quota  of  a  tax  which  had  been  imposed 
upon  all,  for  purposes  of  general  concern  and  convenience. 


356  NEW  JERSEY  SUrREME  COURT. 

Bergen  v.  Clarkson. 

The  first  difficulty,  which  it  is  conceived,  can,  with  any  shew 
of  reason,  be  urged  against  the  propriety  of  these  proceedings, 
arises  from  the  notice  under  which  the  town-meeting  was  held, 
at  which  this  tax  was  voted,  specifying  another  purpose  as  the 
object  of  the  meeting.  This  difficulty,  however,  it  is  presumed 
will,  upon  examination,  prove  insufficient  to  invalidate  proceed- 
ings otherwise  regularly  conducted,  and  in  themselves  so  import- 
ant. Neither  by  the  act  of  incorporation,  nor  in  any  other  man- 
ner, are  the  common  council  required  on  any  occasion  to  specify 
in  their  notice  for  calling  a  meeting,  the  objects  which  it  is  con- 
templated to  propose  for  the  consideration  of  the  inhabitants. 
Every  meeting  has  a  right  to  originate  and  act  upon  any  meas- 
ures which  may  be  deemed  important.  The  specification  there- 
fore, in  the  notice,  that  the  meeting  was  convened  in  order  to 
deliberate  upon  the  expediency  of  becoming  proprietors  in  the 
bridge,  which  it  was  proposed  to  erect,  was  useless  and  unnec-' 
essary,  and  could  not  restrain  the  meeting  from  exercising  the 
functions  and  powers  which  belonged  to  it,  in  taking  up  and  act- 
ing upon  any  measures  that  might  be  suggested. 

Under  the  act  ofincorporation,  all  the  powers  relating  to  the 
voting  of  taxes,  belong  to  the  freeholders  and  inhabitants  of  the 
city,  and  the  common  council  acts  merely  in  a  ministerial  man- 
ner in  convoking  the  meeting.  If  then,  this  body,  by  specifying 
in  the  notice  which  they  issue,  any  particular  purposes  which 
they  may  think  proper  to  state,  as  the  subjects  of  deliberation, 
can  restrict  the  meeting  to  the  consideration  of  these  particular 
objects,  a  controlling  and  unlimited  power  will  be  deposited  in 
their  hands,  which  they  may  employ  to  the  most  pernicious  pur- 
poses. They  may  prevent  the  suggestion  and  adoption  of  any 
measure  not  perfectly  agreeable  to  themselves,  and  thus  defeat, 
in  an  irregular  and  indirect  manner,  proceedings  over  which,  by 
the  act  of  incorporation,  no  power  is  granted  them. 

Another  objection  had  been  urged  to  the  regularity  of  these 
proceedings,  which  was,  that  a  warrant  to  distrain  and  sell  was 
improper,  and  that  the  corporation  should  have  proceeded  by 
summons  and  trial.  To  this  it  might  be  a  sufficient  answer  to 
remark,  that  the  act  of  incorporation  does  not  prescribe  any 
particular  mode  in  which  the  taxes  that  are  assessed  shall  be 
collected  from  the  delinquents.  A  general  authority  is.  given  to 
collect  them  "at  such  time,  and  that  they  should  bo  disposed  of 


NOVEMBER  TERM,  1796.  357 

Bergen  v.  Clarkson. 

in  such  manner,  as  the  common  council  should  direct."  Under 
this  general  discretion  it  was  contended,  that  it  became  the  duty, 
and  was  clearly  the  right  of  the  council,  to  direct  such  a  mode 
to  be  pursued,  as  was  most  in  accordance  with  that  to  which  the 
people  were  accustomed,  and  which  had  been  found  the  most 
beneficial  in  the  collecting  of  state  taxes.  The  ordinance  of  the 
city  is  founded  upon  this  principle,  and  directs  the  president,  or 
one  of  the  directors,  after  receiving  from  the  collector  his  state- 
ment upon  oath,  that  he  had  once,  at  least,  called  at  the  house 
of  the  delinquent,  and  left  the  amount  which  was  assessed  upon 
him,  to  issue  his  warrant. 

The  course  then  pursued,  is  precisely  the  same  as  that  in  which 
other  taxes  are  levied,  and  is  reasonable,  expeditious,  and  with- 
out expense.  If  any  one  thinks  himself  aggrieved  by  the  assess- 
ment, he  can  have  recourse  to  the  common  council,  by  appeal ; 
*or  as  is  customary  in  the  English  practice,  remove  it  to  this 
court  by  certiorari.  When  so  many  safeguards  against  imposi- 
tion are  provided  by  the  laws,  in  a  plain  and  equitable  manner, 
it  would  appear,  indeed,  like  oppression,  to  subject  a  person  who 
was  delinquent  to  the  additional  costs  of  a  suit  in  court.  If  he 
has  voluntarily  omitted  to  avail  himself  of  the  opportunities  of 
redressing  any  error  in  the  assessment,  it  seems  like  an  acknowl- 
edgment of  the  regularity  of  the  proceedings;  and  it  would  be 
superfluous,  as  well  as  burthensome  and  tedious,  to  compel  the 
corporation  to  institute  an  action  against  every  individual  who 
had  proved  delinquent. 

This  question  has  been,  however,  put  to  rest  in  England,  since 
the  time  of  queen  Elizabeth.  In  Clarke's  case,  5  Co.  64,  which 
was  an  action  of  false  imprisonment,  the  defendant  justified  the 
imprisonment,  as  having  been  made  under  a  by-law  of  an  incor- 
porated town,  in  consequence  of  the  plaintiff's  having  refused  to 
pay  a  sum  which  had  been  assessed  upon  him.  The  court  over- 
ruled the  plea,  and  held  the  justification  bad,  on  account  of  tho 
imprisonment;  but  it  was  resolved,  that  they  might  have  inflicted 
a  reasonable  penalty,  but  not  imprisonment,  which  penalty  they 
might  limit  to  be  levied  by  distress,  or  for  which  an  action  of  debt 
might  lay. 

Independent,  however,  of  this  decision,  the  charter  of  incor- 
poration itself  sanctions  this  mode  of  procedure.  In  the  sixth 
section  of  the  act,  fines  and  amercements  are  ordered  to  be  im- 


358  NEW  JERSEY  SUPREME  COURT. 

Bergen  v.  Clarkson. 

posed  upon  certain  offenders,  and  the  authority  is  expressly 
given,  "all  and  every  such  fine  and  amercement  to  take,  de- 
mand, require,  and  levy,  by  warrant  issued  under  the  hand  and 
seal  of  the  president  or  either  of  the  directors,  and  directed  to 
the  marshal  of  the  said  city,  who  is  hereby  required  and  author- 
ized to  execute  the  same,  for  the  use  and  benefit  of  the  said 
president,  directors,  and  assistants,  and  their  successors,  by  dis- 
tress and  sale  of  the  goods  and  chattels  of  the  offenders,  found 
within  the  said  city."  It  can  scarcely  be  urged,  that  a  mode 
which  is  proper  and  correct  in  collecting  fines  and  amercements, 
can  be  illegal  in  collecting  taxes,  or  that  a  mode  which  the  legis- 
lature have  themselves  prescribed  for  the  former,  can  be  objected 
to  if  applied  to  the  latter.  The  common  council,  in  directing 
these  proceedings  by  warrant  of  distress  and  sale,  evidently  had 
it  in  view  to  conform  their  usage  to  that  which  had  been  recog- 
nized by  previous  custom,  and  to  that  which  was  prescribed  by. 
the  legislature  in  analogous  cases:  and  if  there  is  any  legal  mode 
of  exercising  discretionary  powers,  this  must  be  the  one. 

But,  at  farthest,  the  act  of  the  town-meeting  on  the  2d  of 
February,  was  erroneous,  and  not  void.  The  power  of  imposing 
taxes,  peculiarly  and  exclusively  belongs  to  the  inhabitants  of 
the  corporation  assembled  in  town-meeting.  It  was  then  a  sub 
ject  clearly  within  their  jurisdiction,  and  the  functions  were 
prima  facie  correctly  executed.  If  the  meeting  was  irregularly 
convoked,  or  if  the  money  was  improperly  appropriated,  their 
acts  must  stand  and  be  held  to  be  valid,  until  reversed  or  set 
aside  in  a  regular  or  legal  manner.  If,  then,  the  assessment  was 
good  and  binding  until  it  was  vacated,  however  erroneously  the 
meeting  might  have  been  convened,  the  officer  may  justify  under 
the  process,  as  in  all  cases  where  the  authority  by  whom  it  is 
issued  has  jurisdiction  of  the  subject,  however  objectionable  may 
be  the  manner  in  which  the  power  is  exercised. 

This  principle  is  found  in  6  Bac.  Abr.  569,  where  it  is  stated, 
than  an  officer  who  arrests  another  under  a  process  irregularly 
issued  is  not  liable  to  an  action  for  a  false  imprisonment;  for  that 
it  would  be  hard  to  punish  a  person  who  has  done  nothing  more 
than  execute  the  process  of  a  court  to  which  he  owed  obedience. 
In  the  same  book,  p.  570,  it  is  further  stated,  that  it  has  been 
holden  in  another  case,  in  which  all  the  authorities  appear  to 
have  been  well  considered,  that  the  party  at  whose  suit  J.  S. 


NOVEMBER  TERM,  1700.  359 

Bergen  v.  Clarkson. 

has  been  arrested,  under  the  process  of  an  inferior  court,  is  not 
liable  to  an  action  .of  trespass,  although  the  cause  of  action  did 
not  arise  within  the  jurisdiction  of  the  court.  Perkins  v.  Proctor, 
2  Wils.  653.  Ladbroke  v.  Cricket,  2  Term  Hep.  649. 

Frelinghuysen  and  A.  Ogden,  for  the  defendant  in  certiorari,  con- 
tended— 1.  That  the  proceedings  of  the  corporation,  in  the  assess- 
ment of  the  tax  in  question,  were  void,  and,  therefore,  the  warrant 
being  a  nullity,  afforded  no  justification  to  the  officer  acting 
under  it. 

2.  That  no  authority  was  vested  by  law  in  the  corporation,  to 
enforce  the  payment  of  a  tax  legally  assessed,  by  a  warrant  of 
distress  and  sale ;  that,  therefore,  such  warrant  was  illegal,  and 
is  no  justification  of  the  officer. 

1.  The  by-law  or  act  assessing  the  tax  is  illegal,  because  it  is 
repugnant  to  the  law  of  the  land.  Independent  of  any  clause  in 
the  charter  of  incorporation,  whenever  special  powers  are  not 
given,  or  modes  of  executing  these  powers  prescribed  in  the  very 
institution  of  these  bodies,  a  condition  is  always  annexed  to  the 
law,  that  their  proceedings  shall  conform  to,  or  at  least  shall  not 
violate,  the  general  provisions  of  the  law.  2  Bac.  Abr.  Chamber- 
lain ftf  London's  case,  5  Co.  63.  (See  1  Woodes  495.  1  Com.  Dig. 
156.)  This  necessary  restriction  to  the  exercise  of  all  corporation 
powers  is  expressly  mentioned  in  the  sixth  section  of  this  act :  and 
tho  by-law  must  therefore  appear  to  be  agreeable  to  the  directions 
of  t  jo  charter,  and  conformable  to  the  general  law  of  the  country. 

Tliis  tax  and  assessmsnt,  as  set  forth  by  the  corporation  itself, 
appears  to  havs  been  laid  for  the  purpose  of  aiding  in  the  erec- 
tion of  a  court-house  and  gaol  for  the  benefit,  and  to  be  the 
property,  of  the  county  of  Middlesex.  This  unquestionably  was 
not  to  provide  for  the  exigencies  of  the  city;  and  if  the  entire  city 
had  been  embraced  within  the  limits  of  the  county  which  it  was 
intended  to  benefit,  it  might  fairly  be  questioned,  whether  the 
act  was  authorized  by  the  charter?  Every  doubt,  however,  upon 
this  point  must  be  removed,  when  it  is  recollected  that  the  city 
limits  embraced  a  part  of  the  two  counties  of  Somerset  and  Mid- 
dlesex. So  far  as  the  effect  of  this  by-law  is  to  compel  the  in- 
habitants of  the  county  of  Somerset  to  contribute  to  erect  and 
support  the  public  buildings  of  another  count}',  it  is  loading  them 
with  an  extraordinary  burthen,  and  is  manifestly  illegal. 


360  NEW  JERSEY  SUPJREME  COURT. 

Bergen  v.  Clarkson. 

Nor  can  this  difficulty  bo  obviated  by  annexing  such  condi- 
tions to  the  grant  as  have  been  added  to  this.  The  powers  and 
authorities  delegated  to  the  board  of  freeholders  are  as  clearly 
defined  and  limited  by  the  law,  as  those  conferred  upon  the  city 
corporation.  No  authority  is  vested  in  them  to  enter  into  any 
contract  under  which  any  person  should  use  or  occupy  the  pub- 
lic buildings  of  the  county  for  any  other  than  county  purposes. 
Such  An  engagement  by  them,  is  therefore  void  and  nugatory; 
and  the  consideration  upon  which  the  tax  was  imposed  and 
assessed  being  invalid  or  unlawful,  the  whole  proceedings  must 
fall  to  the  ground. 

But  this  tax  was  illegally  laid  in  another  manner.  The  meet- 
ing of  the  inhabitants  and  members  of  the  corporation  was  sum- 
moned for  the  purpose  of  considering  the  expediency  of  raising 
moneys  to  purchase  stock  in  the  bridge  company.  The  specific 
object  of  the  meeting  was  stated  in  the  resolution  and  notice,  and 
it  would  lead  to  consequences  of  a  most  pernicious  kind,  if  such 
proceedings  were  sanctioned.  The  presumption  is,  when  a  par- 
ticular purpose  is  specified,  that  those  who  attend  the  meeting 
come  to  consider  and  deliberate  upon  the  propriety  of  the  avowed 
measure :  those  who  staid  away,  did  it  under  the  impression  that 
no  other  matter  of  consequence  would  be  introduced.  Many 
persons  might  reasonably  be  presumed  to  be  ready  to  acquiesce 
in  whatever  determination  might  be  made,  or  in  that  which  they 
knew  would  be  made  relative  to  a  particular  proposition,  who 
would  zealously  oppose  another  having  different  objects  in  view. 
It  would  be  establishing  an  extremely  bad  precedent,  and  open- 
ing the  sluices  of  corruption  and  imposition,  to  allow  a  certain 
specified  measure  to  be  stated  as  the  object  for  which  the  meet- 
ing was  called,  and  then  to  introduce  and  act  upon  another, 
which,  had  it  been  fairly  held  out,  would  have  ensured  the  pres- 
ence of  all  who  might  bo  opposed  to  it. 

2.  If,  however,  the  tax  in  question  was  legally  imposed,  and 
for  legal  purposes,  and  the  assessment  upon  the  plaintiff  below 
unobjectionable  and  valid,  yet  the  warrant  to  levy  the  amount, 
by  distress  and  sale  of  the  goods  of  the  delinquent,  was  void 
without  a  previous  conviction  or  judgment  of  delinquency. 

Even  the  ordinance  of  November  24,  1785,  under  the  author- 
ity of  which  this  proceeding  seems  to  have  been  founded, 
though  intended  to  direct  the  mode  of  assessing  and  collecting 


NOVEMBER  TERM,  1796.  361 


Bergen  v.  Clarkson. 


taxes,  does  not  authorize  a  warrant  of  distress  and  sale  against 
the  property  of  the  delinquent.  The  by-law  alluded  to  author- 
izes the  president,  or  one  of  the  directors,  "to  issue  bis  warrant 
against  such  delinquent,"  but  prescribes  no  form  in  which  it  is 
to  be  drawn  up,  and  no  mode  of  execution.  The  term  property 
or  goods  is  not  introduced,  and  it  may,  with  as  much  reason,  be 
understood  to  mean  a  warrant  to  bring  the  person  before  the 
president  or  directors  by  whom  it  was  issued,  as  a  summary 
process  against  his  goods. 

If,  however,  this  form  of  proceeding  had  been  expressly  pre- 
scribed in  this  ordinance,  no  corporation,  without  an  express 
power  given  in  the  charter,  can  legally  make  a  by-law  authoriz- 
ing a  warrant  of  execution  against  the  property  of  an  individual, 
without  affording  him  some  opportunity  of  having  his  defence 
heard  and  determined.  In  the  case  of  Clerk  v.  Tucker,  2  Vent. 
132,  it  is  expressly  held,  that  a  corporate  body  having  power  to 
make  by-laws,  cannot  make  one  to  which  a  penalty  is  anncrc'1, 
and  direct  this  penalty  to  be  recovered  by  distress  and  sale  cf 
the  defendant's  goods.  (See  2  Inst.  47.  Kirk  v.  Nowell,  1  Term 
Hep.  118.) 

The  sixth  section  of  the  act  of  incorporation  authorizes  the 
president,  or  either  of  the  directors,  to  issue  a  warrant  of  distress 
and  sale  in  the  case  of  a  fine  or  amercement :  but  this  constitutes 
no  ground  for  extending  the  power  to  other  cases.  In  the  con- 
struction of  all  grants  of  authority,  contrary  to  the  common  law, 
it  is  not  only  conformable  to  the  received  custom  of  courts  of 
justice,  but  highly  reasonable  in  itself,  to  restrain  them  within 
the  terms  and  obvious  meaning  of  the  legislature.  They  ought 
not  be  unnecessarily  extended  by  implication 

According  to  this  rule,  as  the  power  which  has  been  exercised 
has  not  been  expressly  granted,  it  cannot  be  considered  as 
implied  from  the  nature  of  the  charter,  unless  it  is  necessary  to 
enable  it  to  fulfil  the  objects  and  ends  of  its  institution.  The 
prescribing  this  same  mode  for  another  purpose,  so  far  from  fur- 
nishing a  ground  for  a  further  extension  of  it,  is  an  argument 
which  ought  to  operate,  with  at  least  equal  force,  the  other  way: 
and  it  might,  with  much  greater  plausibility,  be  urged,  that 
where  the  legislature  intended  it  should  be  employed,  it  was 
bestowed,  where  they  did  not,  it  was  withheld. 

Had  the  party  been  permitted  to  defend  himself  before  a  regu- 


362  NEW  JERSEY  SUPEEME  COURT. 

Bergen  v.  Clarkson. 

lar  tribunal  of'justice,  he  might  have  proved,  that  he  had  already 
paid  his  quota,  as  it  was  assessed  upon  him ;  he  might  have  shewn, 
within  che  meaning  and  spirit  of  the  act  of  incorporation,  that  ho 
had  no  interest  in  the  proposed  measure,  and  would  derive  no  bene- 
fit from  its  adoption ;  or  he  might  have  proved,  tljat  no  demand, 
such  as  is  required  by  the  by-law,  had  ever  been  made  of  him.  By 
this  summary  proceeding,  he  is  effectually  precluded  from  all 
these  possible  defences,  either  of  which  ought  to  have  availed. 

This  is  not  a  case  in  which  the  distinction  that  has  been  taken 
between  void,  and  voidable  acts  can  apply.  Either  the  proceed- 
ings were  legal,  and  consequently  valid,  or  they  were  illegal,  and 
therefore  a  nullity.  A  by-law  is  not  a  judicial  act  which  is  pre- 
sumed to  be  good  until  set  aside,  or  which,  however  erroneous 
it  may  be,  must  stand  until  it  is  reversed ;  but  it  is  a  case  wherein 
certain  delegated  powers  are  granted,  and  it  must  be  shewn,  by 
the  person  who  acts  under  them,  that  he  has  pursued  the  direc- 
tions, and  complied  with  the  conditions,  which  the  grantor  has 
deemed  it  expedient  to  annex  to  the  exercise  of  the  authority. 
It  is  the  act  of  a  special  legislative  body,  who  being,  by  the  terms 
of  their  institution,  restricted  to  legislate  in  a  certain  manner,  and 
on  certain  subjects,  have  made  a  law  in  a  mode,  and  for  a  pur- 
pose, different  from  those  recognized  in  their  charter.  Any  one, 
therefore,  against  whom  it  is  attempted  to  enforce  such  an  act, 
and  by  such  means,  .has  a  right  to  say,  the  whole  proceeding  is 
illegal  and  invalid;  and  the  court  before  whom  the  question  is 
brought,  is  to  decide  upon  this  question  of  absolute  validity  01 
invalidity. 

There  is  no  case  to  be  found  in  which  this  distinction  between 
void  and  voidable  has  been  applied  to  the  by-laws  of  corpora- 
tions. The  single  question  uniformly  is,  is  the  by-law  good  or 
not?  The  case  of  Clerk  v.  Tucker  furnishes  a  conclusive  answer 
to  this  suggestion.  There  the  by-law  was  made  upon  a  subject 
unquestionably  within  their  jurisdiction :  the  only  objection  that 
•was  urged,  was  to  the  manner  in  which  it  was  to  bo  enforced. 
The  court  held  that  it  was  void,  so  far  as  it  related  to  the  war- 
rant to  distrain  and  sell,  and  the  officer  who  justified  under  this 
law  and  process  was  nevertheless  held  a  trespasser. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  In  this  case, 
two  questions  occur  for  our  consideration. — 1.  Whether  the  tax 


NOVEMBER  TERM,  1796.  363 

Bergen  v.  Clarkson. 

imposed  by  the  town-meeting,  at  the  meeting  on  the  2d  of  Feb- 
ruary, 1793,  was  authorized  by  the  charter  of  incorporation  ? 

2.  Whether,  supposing  the  tax  to  have  been  legally  voted  and 
assessed,  the  warrant  of  distress  and  sale,  under  which  the 
alleged  trespass  was  committed,  was  a  lawful  process,  or  affords 
a  sufficient  and  legal  justification  of  the  officer? 

We  are  of  opinion,  on  the  first  point,  that  the  tax  in  question 
was  not  laid  pursuant  to  the  charter;  and  this  opinion  is  founded 
on  several  grounds. 

1.  The  professed  object  of  the  tax  was  to  purchase  of  the 
board  of  justices  and  freeholders,  an  interest  in  the  court-house 
of  the  county  of  Middlesex,  for  the  purpose  of  accommodating 
the  corporation  with  public  buildings.     It  is  certain  that  the 
board  could  make  no  such  contract  with  the  corporation ;  the 
consideration,  therefore,  or  the  object  of  the  tax,  was  void.    The 
money  thus  raised  and  thus  appropriated  was  not  applied  to  the 
exigencies  of  the  city;  it  was  raised  for  a  purpose  which  had  no 
legal  existence,  and  appropriated  as  a  mere  gift  to  the  county. 
The  effect,  therefore,  was  to  compel  the  inhabitants  of  the  cor- 
poration residing  on  the  Somerset  side  of  the  city,  who  had  to 
build  and  maintain  a  court-house  of  their  own,  to  assist  in  de- 
fraying the  expenses  of  the  public  buildings  of  another  county. 
In  this  point  of  view,  we  consider  the  tax  as  illegally  imposed, 
and  as  not  authorized  by  the  charter. 

2.  We  look  upon  this  vote  or  proceeding  as  void  upon  another 
ground.      The  meeting  of  the  2d  of  February  was  avowedly 
called  by  the  common  council,  not  for  the  general  purposes  of 
laying  taxes,  or  supplying  the  deficiencies  in  the  preceding  annual 
appropriations,  but  for  the  special  purpose  of  considering  the 
propriety  of  raising  money,  "in  order  to  become  proprietors  in 
the  bridge  to  be  erected  over  the  Rariton  river."     This  is  the 
only  object  of  the  resolution  passed  by  the  common  council  on 
the  25th  of  January,  1793,  for  calling  the  town-meeting,  and  it 
was  the  only  object  to  which  the  attention  of  the  citizens  was 
directed  in  the  advertisement  by  which  they  were  called  together. 
At  the  meeting  held  in  consequence  of  this  resolution  and  adver- 
tisement, the  persons  present  take  no  notice  of  the  matter  which 
had  been  publicly  announced,  as  the  one  that  was  to  come  under 
consideration,  or  of  the  resolution  and  proposition  made  by  the 
common  council ;  but  they  introduce  a  subject  altogether  foreign 


364  NEW  JERSEY  SUPREME  COURT. 

Bergen  v.  Clarkson. 

to  the  avowed  purpose,  and  pass  a  vote  for  raising  £300,  to 
"  build  a  court-house  and  gaol,  in  the  city,  for  the  use  of  the 
county  of  Middlesex,"  on  condition,  however,  that  the  freehold- 
era  should  assure  the  benefit  of  these  buildings  to  the  citizens. 

We  are  of  opinion  that  this  vote,  being  wholly  beside  the  special 
purpose  of  the  meeting,  as  stated  in  the  resolution  of  the  council 
and  the  public  notice,  was  void.  *  The  injurious  consequences 
which  might  result  from  establishing  the  principle,  that  the  com- 
mon council  may  summon  the  inhabitants  to  raise  money  for  our 
purpose,  which  perhap's  being  obviously  necessary  or  advisable, 
they  may  be  induced  to  remain  at  home,  and  the  asgembty  thus 
convened  may  impose  a  tax  for  another,  and  altogether  a  distinct 
purpose,  are  so  manifest  as  to  require  no  illustration.  It  is  not 
a  sufficient  answer  to  this,  to  say,  that  the  common  council 
were  not  obliged  to  specify  the  objects  of  the  meeting  in  their 
summons  or  notice:  we  think,  however,  that  this  ought  always 
to  be  done  on  special  meetings.  (See  2  Bur.  735.)  In  this  case 
it  was  done ;  a  particular  purpose  was  announced,  and  the 
meeting  could  not  essentially  vary  from  it.  If  another  proposi- 
tion, altogether  different  in  its  nature,  was  suggested,  another 
meeting  might  and  ought  to  have  been  convened. 

For  these  reasons  alone,  without  entering  into  the  particular 
circumstances,  which  in  this  case  furnish  strong  suspicions  of 
ntentional  and  premeditated  deception  in  this  double  faced 
transaction,  we  are  of  opinion,  that  the  vote  of  the  second  of 
Ji'ebruary,  1793,  imposing  a  tax  of  £300  upon  the  citizens  of 
.!^ew  Brunswick,  for  the  purposes  set  forth,  was  illegal  and  void ; 
und  of  consequence,  that  the  assessment  of  it ;  the  ordinance  di- 
recting the  time  of  its  payment ;  the  duplicates,  and  warrant  of 
distress,  having  no  valid  foundation,  are  all  likewise  void.  (See 
Head  v.  Providence  Ins.  Co.,  2  Cranch  127.) 

2.  Being  of  this  opinion  upon  the  first  point  of  the  case,  as  to 
the  illegality  of  the  tax  itself,  it  might  be  unnecessary  to  consider 
the  propriety  of  a  warrant  of  distress  and  sale,  which  was  the  sec- 

*  This  principle  is  laid  down  in  2  Sac.  Abr.  18  ;  but  the  cases  of  Afutyrave  v. 
Jfevinson,  1  Str.  583,  2  Lord  Ray,  1358,  and  King  v.  Strangeways,  cited  by  Lord 
Hardwicke,  Ca.  temp.  Hardw.  142,  in  the  case  of  King  v.  Mayor,  dec.  of  Shrcwt- 
lury.  do  not  come  quite  op  to  the  doctrine.  The  cases  of  the  Kinr/,  Mayor,  <tc.  of 
Carlisle  1  Sir.  385;  Machell  v.  Ncvinton,  2  Lord  Ray,  1355;  Justice  Wil mot's 
opinion  in  Rex  v.  Liverpool,  2  Bur.  735,  and  Rex  v.  Mayor,  <fcc.  of  Doncaster, 
Ib,  735,  approach  much  nearer  to  it.  See  also  11  East  84. 


NOVEMBER  TEKM,  1796.  365 

Bergen  v.  Clarkson. 

ond  question  proposed.  In  a  matter,  however,  of  so  much  moment 
\ve  conceive  it  our  duty  to  pave  the  way,  at  least,  for  a  final  settle- 
ment of  this  law,  in  order  to  prevent  the  expense  and  trouble  which 
must  be  incurred  in  obtaining  a  decision  upon  it  in  another  case. 

If  the  tax  in  question  had  been  legally  imposed,  we  are  clearly 
of  opinion,  that,  by  the  terms  and  spirit  of  the  charter,  the  cor- 
poration are  not  authorized  to  collect  it  by  a  warrant  of  distress 
and  sale,  upon  the  return  and  oath  of  the  collector,  that  the 
persons  assessed  is  a  delinquent. 

When  a  tax  is  assessed,  if  it  has  been  done  in  a  legal  manner, 
the  quota  apportioned  upon  each  individual  becomes  a  debi;, 
and,  if  not  paid,  must  be  recovered  by  the  corporation  in  due 
course  of  law  ;  unless  where  the  charter  authorizes  proceedings 
of  a  more  summary  kind ;  or  unless  a  corporation  is  empowered 
by  the  common  law  to  enact  a  by-law  prescribing  the  mode  in 
which  their  debts  may  be  collected. 

With  regard  to  the  charter  by  which  the  city  of  New  Bruns- 
wick holds  its  corporate  existence,  it  gives  no  such  power,  as  :is 
contended  for,  in  general  cases.  It  expressly  authorizes  a  war- 
rant of  distress  and  sale  in  the  case  of  fines  and  amercements, 
which  being  particularly  specified,  would  seem,  if  any  such  argu- 
ment was  necessary,  to  exclude  this  mode  of  proceeding  in  all 
other  cases. 

.  By  the  common  law,  we  consider  it  as  clear,  that  corporations 
cannot  make  a  by-law  to  enforce  the  payment  of  taxes,  fines, 
amercements,  or  forfeitures,  by  warrant  to  distrain  and  sell  the 
goods  of  the  party  who  may  have  omitted  to  discharge  his 
legal  dues.  The  case  of  Clerk  v.  Tucker  is  in  point,  and,  as  wo 
conceive,  states  the  correct  doctrine  upon  this  question.  Tho 
distinction  which  it  has  been  attempted  to  take  between  a  fino 
or  amercement  and  a  tax,  is  gi*oundless  and  novel;  if  the  goods 
of  one  actually  convicted  of  an  offence,  under  a  special  by-law, 
and  fined,  cannot  be  levied  by  distress  and  sale,  the  very  mode 
pointed  out  in  such  by-law  a  fortiori,  it  cannot  bo  done  for  the 
mere  non-payment  of  a  tax,  and  that  delinquency  established  by 
the  ex  parte  relation  and  oath  of  the  collector. 

It  is  no  answer  to  this  to  say,  that  this  is  the  mode  in  which 
the  state  taxes  are  collected ;  because  there  is  an  express  law 
authorizing  and  directing  it,  and  there  can  be  no  question  as  to 
the  authority  of  the  legislature  to  enact  such  law.  From  the 


366  NEW  JERSEY  SUPREME  COURT. 

Rose  v.  Winners. 

powers  which  are  vested  in  the  supreme  legislative  body  of  the 
county,  no  inference  can  be  drawn  to  prove  the  powers  of  inferior 
corporations.  A  body  of  this  kind  can  make  no  law  which 
contravenes  the  common  or  statute  law  of  the  community,  which 
tends  to  despoil  the  citizen  of  his  birth  right,  unless  such  power 
is  actually  and  expressly  given  them  by  charter.  The  act  of 
incorporation  does  not,  in  the  present  case,  vest  such  an 
authority;  on  the  contrary  it  expressly  provides,  in  the  sixth 
section,  that  their  ordinances  "  shall  not  be  repugnant  to  the 
laws  of  New  Jersey." 

Upon  the  whole,  we  are  of  opinion — 1.  That  there  has  been 
no  legal  vote  for  raising  this  money,  and  that  the  whole  pro- 
ceeding was  an  act  of  usurpation,  and  void. 

2.  That  the  process  issued  by  the  director  was  void,  and  no 
justification  to  the  officer;  he  must  be  answerable  to  the  party 
injured,  and  look  for  indemnity  to  those  under  whose  usurped 
authority  he  has  acted. 

Let  the  judgment  be  affirmed. 

CITED  IK  White  v.  Tallman,  2  Dutch.  67.    State  v.  Zeigler,  3  Vr.  262.    Oily  of 
Camden  v.  Mulford,  2  Dutch.  49,  58. 


BOSS  and  WIFE  againtt  WINNERS. 

OS  CEBTIOBAKI. 

Evidence  of  the  wife's  confessions,  made  subsequent  to  the  marriage,  of  a  debt 
due  by  her  previous  to  the  marriage,  are  inadmissible  to  charge  the  husband. 

This  action  was  brought  against  Ross  and  wife,  on  a  contract 
made  by  the  wife  before  marriage.  Among  other  testimony 
which  went  to  the  jury,  it  was  proved,  that  the  wife,  subsequent 
to  her  marriage,  had  acknowledged  the  debt,  or  a  part  of  it. 

I.  Williamson,  for  defendant,  contended,  that  the  wife  being  a 
party,  her  confessions  were  good  evidence. 

A.  Ogden  and  M.  Williamson,  contra. 

Per  curiam.  The  judgment  is  erroneous  and  must  be  reversed, 
on  the  ground,  that  evidence  was  admitted  to  prove  the  confes- 
sions of  the  wife  of  a  debt  contracted  previously  to  her  marriage.* 

Judgment  reversed. 

*  See  6  Term  Hep.  680.    Phil.  Eri.  64. 


AP11IL  TERM,  1797.  367 


Den  v.  Dodd. 


[APRIL  TERM,  1797.] 


DEN  exdem.  HALSEY  against  DODD. 

Though  a  woman  entitled  to  dower  cannot  enter  upon  the  land  and  take 
possession  without  suit,  or  before  assignment,  yet  if  she  is  in  possession,  legally, 
her  right  to  dower  is  a  good  bar  in  an  action  of  ejectment. 

This  was  an  action  of  ejectment,  brought  to  recover  certain 
lands  situated  in  the  county  of  Essex.  The  lessor  of  the  plaintiff 
claimed  title, as  a  purchaser  at  a  sheriff's  sale;  and  the  defend- 
ant rested  the  defence  to  the  action  upon  a  right  to  dower  in  the 
premises,  in  the  widow  of  the  former  proprietor,  the  person  last 
seized. 

The  cause  had  been  argued  at  the  last  November  Term,  and 
now — 

KINSET  C.  J.  delivered  the  opinion  of  the  court.  It  is  admitted, 
in  the  present  action,  that  Abraham  Ward  and  Jabez  Ward  were 
seized  of  the  lands  in  question  in  October,  1776.  Abraham  died 
seized  in  Januaiy,  1779.  In  the  month  of  September,  1794, 
judgment  was  entered  against  Dodd,  and  his  wife,  executrix  of 
Abraham  Ward,  and  the  lands  in  question  were  levied  upon  by 
the  sheriff,  and  sold  as  the  property  of  the  testator. 

This  action  is  brought  by  the  purchaser  at  the  sheriffs  sale, 
to  recover  the  lands  thus  sold  to  him  ;  the  defendant  defends  for 
one-sixth  of  the  premises,  which  he  claims  for,  and  under  his 
wife,  the  widow  of  Abraham  Ward,  one  of  the  former  proprie- 
tors; and  the  only  question  is,  whether  this  constitutes  a  valid 
defence,  and  furnishes  a  legal  right  to  retain  possession? 

This  is  a  question  which  is  attended  with  no  real  difficulty.  It 
has  been  settled  in  this  state,  at  least  forty  years  since,  that  the 
sale  by  a  sheriff  is  no  bar  to  the  wife's  claim  of  dower:  the  jus- 
tice of  the  case  therefore  is  clear.  The  purchaser  is  entitled  to 
the  lands  conveyed  to  him  by  the  sheriff,  excepting  always  the 
life-estate  of  the  widow  in  one-third  of  them.  The  only  doubts 
•which  can  arise,  are  as  to  the  manner  in  which  these  rights  are 
to  be  preserved  and  secured,  and  the  argument  in  this  case  has 
turned  principally  upon  the  manner  in  which  the  wife  is  to  gain 
possession  of  what  clearly  belongs  to  her. 

Several  cases  and  authorities  have  been  cited,  to  shew  that  a 


368  NEW  JERSEY  SUPREME  COURT. 

Den  v.  Dodd. 

widow  is  not  allowed  to  enter  upon  the  land  of  her  husband 
before  her  dower  has  been  assigned.  It  would  be  superfluous  to 
refer  to  them,  for  we  consider  the  law  as  clearly  settled  upon 
this  point.  The  present  case,  however,  is  widely  different:  there 
has  been  no  illegal  entry  by  the  wife,  and  no  claim  of  the  kind 
is  made:  but,  as  it  appears  to  the  court  from  the  circumstances, 
the  widow  has  been  in  possession  since  the  death  of  her  husband, 
in  1779,  a  period  long  anterior  to  that  at  which  the  title  of  the 
lessor  of  the  plaintiff  became  vested  in  him.  The  true  question, 
then,  is  not,  whether  she  had  a  legal  right  to  enter  upon  the 
lands  in  controversy,  to  which  she  was  entitled  as  tenant  in 
dower?  but,  whether,  having  come  into  possession  legally  and 
peaceably,  she  could  lawfully  retain  it  under  her  right  ?  Whether, 
being  in  the  possession  of  the  property,  the  law  will  turn  her  out 
and  put  her  to  an  action  to  recover  her  claim?  In  other  wordn, 
whether  a  woman  is  to  be  compelled,  immediately  upon  the  deat » 
of  her  husband,  to  quit  the  possession,  and  continue  deprive  1 
of  her  rights  until  she  can  regain  them  by  due  course  of  law  > 
I  have  not  been  able  to  find  any  express  adjudication  upon  thi.i 
subject,  but  such  a  doctrine  would  be  highly  unreasonable,  and 
we  think  ourselves  warranted  to  say,  it  is  wholly  without 
foundation,  and  that  she  may  legally  retain  possession  until  her 
dower  be  assigned  her. 

Three  things,  only,  are  essential  to  this  estate — marriage,  seizin, 
and  death  of  the  husband :  on  the  happening  of  the  last,  the  title 
is  complete.  By  the  law  anterior  to  William  the  conqueror,  a 
•widow  was  entitled  to  continue  in  the  principal  messuage  of  her 
husband  for  the  term  of  one  year  after  his  death,  and  during  this 
period  an  assignment  was  to  be  made  to  her  of  her  dower.  This 
privilege,  except  that  this  time  was  limited  to  forty  days,  called 
the  widow's  quarantine,  is  expressly  recognized  and  protected 
by  Magna  Charta  c.  1.  But  the  heir  is  still  bound  to  assign  the 
dower  within  this  period.  The  object  of  the  law  is  clear  and 
beneficient.  The  woman  depends  upon  the  husband  during  his 
life,  and  after  his  death  the  law  not  only  assigns  her  a  portion 
of  his  estate,  but  requires  that  it  should  be  regularly  placed 
under  her  control  within  the  time  allowed  her  to  occupy  the 
mansion-house  of  her  husband. 

The  language  of  the  law  is  imperative,  and  enjoins  upon  the 
heir,  or  whoever  may  stand  in  his  place,  to  perform  his  duty.  It 


APRIL  TERM,  1797.  3C9 

Den  v.  Dodd. 

is  highly  proper  that  she  should  continue  in  the  possession  of  the 
principal  mansion  until  her  portion  is  settled.  Dower  is  one  of 
those  rights  which  the  law  always  favours,  and  we  are  not  dis- 
posed to  restrict  her  in  the  exercise  of  the  means  necessary  to 
attain  it.  The  doctrine,  that  she  may  retain  possession  until 
assignment,  though  she  cannot  enter  before,  is  by  no  means  a 
novel  one.  In  Goodtitle  v.  Newman,  3  Wils.  516,  it  is  clearly 
recognized.  Gould  J.  (p.  519)  puts  this  question  to  the  counsel 
who  was  arguing  the  cause :  "  If  dower  be  not  assigned  to  her 
within  forty  days,  may  she  not  continue  until  it  be  assigned  to 
her?  I  think  the  court  would  not  turn  her  out  until  dower  was 
assigned  to  her."  The  counsel  replied,  "It  must  be  admitted 
that  the  heir  has  no  right  to  turn  her  out  before  dower  be 
assigned  to  her."  In  the  following  page,  the  same  judge  speaks 
of  her  "  holding  the  premises  by  way  of  compulsion  to  have- her 
dower  assigned  to  her."  Nares  J.  (p.  521)  seems  to  recognize 
the  doctrine,  though  he  denies  its  application. 

Under  the  authority  of  this  case  in  Wilson,  and  considering 
the  extreme  reasonableness  of  the  doctrine,  we  are  warranted 
in  saying,  that  although  the  widow,  when  out  of  possession,  can- 
not legally  enter  until  her  dower  is  assigned  to  her,  yet,  when 
she  came  upon  the  property  during  the  lifetime  of  the  husband, 
and  remained  there  subsequent  to  his  death,  the  heir,  or  one 
claiming  under  him,  cannot  maintain  an  ejectment  against  her, 
and  oust  her,  without  assigning  to  her  that  proportion  of  tha 
estate  to  which  she  is  legally  entitled,  and  that  is  the  point  to 
which  the  present  defence  is  limited.  On  the  first  part  of  this 
doctrine,  we  are  bound  by  repeated  decisions;  on  the  latter,  we 
are  supported  by  the  authority  referred  to,  and  by  the  reaaoa, 
and  equity  of  the  principle. 

Judgment  for  the  defendant.* 

CITED  IN  Woodruff  v.  Brown,  2  Harr.  246.  Smallvoood  v.  Bilderback,  1  Harr.  506; 

*In  Jackson  ex  dem.  Clark  v.  O'Donagley,  7  John.  247,  a  contrary  doctrine 
•was  held  by  the  court,  and  it  was  adjudged,  that  after  the  quarantine  of  forty 
days  have  elapsed,  the  heir,  or  any  person  deriving  title  from  the  husband^  may 
expel  the  widow  and  put  her  to  her  suit  to  recover  her  dowor. 

VOL.  L  T 


370  NEW  JERSEY  SUPREME  COURT. 

' 

Budd  v.  Crea. 
BUDD  against  CREA. 

IN    ERROR. 

Where  the  judges  refuse  to  allow  all  the  evidence  that  haa  been  given  in  a 
cause  to  be  inserted  in  a  bill  of  exceptions,  it  cannot  be  taken  advantage  of  by 
writ  of  error.  Query.  Whether  by  certiorari  or  mandamus  f 

Crea,  the  defendant  in  error,  brought  an  action  against  Budd 
in  tbo  court  below,  for  breach  of  a  promise  of  marriage.  In 
mitigation  of  damages,  and  to  shew  the  ground  upon  which  ho 
had  failed  to  comply  with  the  engagement  on  bis  part,  Budd 
offered  to  prove,  that,  after  the  contract  was  made,  Crea  had 
been  guilty  of  the  most  lewd  and  improper  conduct,  in  offering 
to  go  to  bed  with  one  Cook,  undressing  herself  beibre  him,  and 
other  wanton  and  indecent  behaviour.  The  evidence  being 
objected  to  by  the  counsel  for  the  plaintiff,  was  overruled  by 
the  court:  to  their  opinion  exceptions  were  taken,  and  the  cause 

removed  by  writ  of  error. 

s 

Elisha  Boudinot  and  A.  Ogden,  for  the  plaintiff  in  error,  relied 
npon  two  grounds — 1.  That  the  evidence  was  improperly  over- 
ruled. 

2.  That  the  court  below  had  refused  to  insert  all  the  evidence 
in  the  bill  of  exceptions. 

1.  The  evidence  that  was  offered  was  highly  proper  in  an 
action  of  this  description,  where  the  amount  of  damages  is  to  be 
estimated  according  to  tbo  injury  that  has  been  inflicted.  It  is 
impossible  to  contend,  that  where  a  woman  so  grossly  outrages 
the  laws  of  decorum,  as  the  defendant  below  was  prepared  to 
prove  in  the  present  instance,  she  ought  to  be  allowed  to  come 
into  court  to  recover  the  same  amount  of  damages,  as  if  her 
conduct  had  been  regulated  by  rules  of  propriety.  Nor  is  a 
man,  who  upon  discovering  the  woman  to  whom  he  has  prom- 
ised marriage,  to  be  a  lewd  and  wanton  character,  dissolves  the 
engagement,  equally  culpable  in  the  eye  of  morality  or  of  reason 
with  him,  who,  from  mere  caprice  or  volatility,  or  from  worse 
motives,  aims  a  blow  at  the  happiness  of  an  innocent  and  stain- 
less victim,  aggravating  the  actual  wrong  by  the  grossest  insult. 
The  one  is  exonerated  from  all  censure  in  the  eye  of  the  world, 
the  other  justly  incurs  the  disapprobation  and  contempt  of  his 
,  neighbours. 


APEIL  TERM,  1797.  371 

Budd  v.  Crea. 

If,  then,  a  difference  of  so  important  a  kind  may  exist,  and  this 
difference  is  so  materially  to  affect  the  measure  of  damages,  it 
becomes  a  part  of  the  inquiry  to  ascertain  under  what  circum- 
stances, and  from  what  causes  the  contract  was  dissolved?  and 
what  was  the  character  of  the  woman  who  comes  forward  to  com- 
plain of  an  injury  to  her  rights,  and  to  obtain  compensation  for 
her  wounded  feelings?  The  character  of  the  plaintiff  is  directly 
in  issue.  In  Roberts  v.  Malston,  Bull,  N.  P.  271,*  the  doctrine  is 
laid  down,  that  in  an  action  for  criminal  conversation,  the  defend- 
ant may  give  in  evidence  particular  facts  of  the  wife's  adultery 
with  other  persons,  or  that  she  had  a  bastard  before  her  marriage ; 
because,  in  an  action  of  this  kind,  her  character  is  directly  in 
issue.  The  same  case  is  reported,  and  the  same  doctrine  con- 
firmed, in  1  Morgan's  Essays  36.  The  principle  is  fairly  applicable 
to  this  species  of  action. 

2.  The  court  refused  to  permit  the  whole  evidence  to  be  stated 
in  the  bill  of  exceptions.  The  entire  evidence  of  a  case  is  so  con- 
nected, and  that  which  is  offered  depends  so  much  upon  what 
precedes  it,  that  it  is  almost  impossible  to  determine  whether  the 
testimony  offered  was,  or  was  not,  properly  overruled.  In  many 
casts  facts  may  be  proved,  by  way  of  rebutter,  which  of  them- 
selves, and  in  the  first  instance,  would  be  inadmissible.  The 
court  is  presented  with  an  imperfect  and  garbled  state  of  the 
case,  and  the  means  of  judging  correctly  are  not  afforded  them. 

Ab.  Ogden,  contra.  Without  entering  into  a  particular  exam- 
ination of  the  different  arguments  which  have  been,  and  may  be 
employed  in  a  case  of  this  nature,  similar  to  those  which  have 
been  urged,  it  may  be  proper  to  remark,  that  all  the  cases  cited, 
furnish  no  ground  upon  which  the  court  can  decide,  except  by 
analogy.  There  is  little  similarity  between  an  action  for  criminal 
conversation  and  an  action  for  the  breach  of  a  marriage  contract, 
and  arguments  drawn  from  the  practice  of  courts  in  one,  furnish 
little  light  in  deciding  upon  the  other. 

With  regard,  however,  to  this  particular  case,  if  any  part  of 
the  evidence  offered  was  inadmissible,  even  upon  the  extension 
of  the  principle  that  has  been  adopted  in  cases  of  criminal  con- 
versation, the  whole  was  properly  rejected.  Testimony  was 
offered  to  prove  general  wanton  and  indecent  behaviour,  and  this 

*See,  also,  Ekam  v.  Faweet,  2  Esp.  Co..  562.    Peake's  Ev.  7.   Selw.  N.  P.  18. 


372  NEW  JERSEY  SUPREME  COURT. 

Badd  v.  Crea. 

part  of  the  evidence  was  so  connected  with  .the  other  that  it 
would  have  been  impossible  for  the  court  to  have  undertaken  to 
divide  them.  At  any  rate,  the  offer  made  was  to  introduce  testi- 
mony, some  of  which  might,  upon  the  principles  contended  for, 
have  been  proper;  other  parts  of  it,  however,  going  to  prove 
general  character,  are  excluded  by  the  authorities  which  they 
have  themselves  cited,  and  if  the  court,  in  overruling  the  whole, 
prevented  the  introduction  of  that  which  was  legal,  it  must  be 
attributed  to  themselves,  who  connected  the  whole  together. 

2.  The  refusal  of  the  court  to  permit  all  the  evidence  in  a 
cause  to  be  introduced  into  a  bill  of  exceptions,  is  now,  for  tho 
first  time,  brought  forward  as  a  ground  for  reversing  a  judgment 
on  a  writ  of  error.  It  was  unquestionably  an  act  of  adjudication, 
but  it  is  not  less  clear  that  a  decision  upon  a  collateral  question 
of  this  kind,  is  not  such  a  one  as  would  authorize  a  writ  of  error: 
if  it  would  not  serve  as  a  foundation  for  a  writ  of  error,  it  is 
because  the  mistake,  if  any  there  be,  is  insufficient,  or  becauuo 
there  is  another  and  an  adequate  remedy  for  the  party  who  con- 
siders himself  as  aggrieved.  It  is  not  a  final  judgment,  ar/d 
therefore  no  writ  of  error  will  lie ;  tho  consequence  is  irresisti- 
ble, that  it  cannot,  when  error  is  brought  upon  another  point, 
serve  as  a  ground  to  reverse  the  judgment.  The  question, 
whether  tho  inferior  court  did  right  or  wrong  is  perfectly  imma- 
terial at  this  time?  the  proper  remedy  is  by  certiorari. 

KINSET  C.  J.    Perhaps  by  mandamus. 

A.  Ogden,  in  reply.  In  all  assumpsits.  or  undertakings  the  law 
requires  a  consideration :  and  the  party,  on  being  sued  upon  his 
contract,  is  at  liberty  to  go  into  the  consideration  upon  which  it 
stands.  In  a  promise  of  marriage,  tho  undertaking,  which  the  law 
and  which  common  sense  require  on  the  part  of  the  woman,  is, 
that  she  should  be  chaste  and  faithful,  and  demean  herself  with 
propriety  subsequent  to  the  engagement.  If  there  is  any  failure 
in  this  respect,  she  has  violated  her  duty,  she  has  destroyed  tho 
consideration  upon  which  the  contract  was  founded,  and  the  other 
party  would  sacrifice  his  prospects  of  happiness,  and  put,  at  least, 
in  jeopardy  his  character  in  society,  by  uniting  himself  in  mar- 
riage with  a  woman  whose  principles  he  had  discovered  to  bo  cor- 
rupt, and  whoso  behaviour  he  had  ascertained  to  be  infamous. 


APKIL  TEEM,  1797.  373 

% 

Budd  v.  Crea. 

As  to  part  of  the  testimony  being  irrelevant  to  the  issue,  or 
legally  objectionable,  the  court  ought  to  have  overruled  only 
that  which  was  inadmissible  and  received  the  rest.  The  error 
of  which  we  complain  is,  that  we  offered  testimony  which  we 
had  a  right  to  lay  before  the  jury,  and  the  court  refused  to 
admit  it.  It  is  no  answer  to  this  to  say  that  we  offered  other 
evidence  which  was  properly  rejected. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  Two  objec- 
tions have  been  urged  why  this  judgment  should  be  reversed. 
1.  That  the  court  below  refused  to  admit  the  defendant  to  prove, 
that  the  plaintiff  had  offered  to  go  to  bed  with  another  man ;  had 
undressed  herself  before  him,  and  been  guilty  of  lewd  and  inde- 
cent behaviour;  and  2.  That  they  refused  to  state  upon  the  bill 
of  exceptions  all  the  testimony  that  had  been  given  in  the  case. 

With  regard  to  the  last  exception,  it  has  long  been  settled  in 
this  court,  that  every  part  of  the  evidence  ought  to  be  stated ; 
and  there  can  be  no  question  but  that  it  should  always  be  done, 
for  it  may  frequently  be  impossible  for  a  court  to  determine 
upon  the  pertinency  or  legality  of  testimony,  to  know  whether 
it  was  improperly  admitted  or  erroneously  overruled,  unless  they 
have  a  complete  view  of  all  that  was  before  done  in  the  case. 
But  this  error,  however  injurious  to  the  party,  however  palpa- 
ble in  the  law,  is  not  a  ground  of  exception  in  this  way,  and  it 
must  be  dismissed  from  our  consideration. 

But  with  respect  to  the  first  exception,  though  I  at  first  doubted 
•whether  the  character  of  the  plaintiff  could  be  considered  as 
fairly  involved  in  the  issue,  yet  more  mature  reflection  has  satis- 
fied me  that  no  such  doubt  ought  to  exist,  and  that  the  evidence 
ought  to  have  been  admitted,  at  least,  in  mitigation  of  damages. 
A  promise  of  marriage  is  a  valid  and  an  obligatory  contract.  But 
if  a  man,  ignorant  of  the  real  character  of  a  woman,  enters  into 
an  engagement  of  this  nature,  and  afterwards  discovers  her  to 
be  lewd  and  unchaste,  it  is  a  sufficient  justification  for  him  to 
refuse  a  compliance  with  it.  See  3  Esp.  N.  P.  Ca.  236,  Foulket 
v.  Selway.  The  case  is  similar  to  that  in  which  a  man  sells  a 
horse  possessed  of  some  latent  defect,  known  only  to  the  seller, 
for  the  full  value  of  a  sound  one;  it  is  a  fraud  which  vitiates  the 
whole  contract. 

All  promises  of  this  kind  are  founded  upon  a  presumption  of 


374  NEW  JERSEY  SUPREME  COURT. 

State  v.  Van  Waggoner. 

chastity  on  the  part  of  the  woman.  This  is  the  consideration  of 
the  contract,  and  where  that  consideration  is  discovered  to  have 
failed,  she  has  herself  been  guilty  of  the  first  breach,  and  I  should 
be  strongly  inclined  to  think  the  contract  dissolved.  We  are  not, 
however,  called  upon  in  this  case  to  carry  the  principle  to  this 
extent:  but  we  consider  character  to  be  so  far  in  issue,  that 
proof  of  lewd  behaviour  goes  to  the  action,  at  any  rate  in  miti- 
gation of  damages,  for  a  strumpet  ought  not  to  recover  so  much 
compensation  for  a  violation  of  such  a  promise,  as  an  innocent 
and  modest  woman.  (Johnson  v.  Caulkins,  1  John.  Ca.  116.)* 


THE  STATE  against  VAN  WAGGONER. 

Indians  may  be  slaves  under  the  laws  of  New  Jersey ;  what  shall  be  consid- 
ered as  sufficient  proof  of  slavery. 

This  was  a  habeas  corpus,  which  had  issued  to  bring  up  the 
body  of  Rose,  an  Indian  woman,  claimed  by  the  defendant  as  a 
slave. 

Brown,  whose  affidavit  was  read,  swore  that  he  know  the 
mother  of  Rose,  who  was  an  Indian  woman,  and  lived  with  one 
Vangeson.  Vangeson,  never  within  his  knowledge,  claimed  her 
as  a  slave,  but  called  her  a  North  Carolina  squaw.  Another  wit- 
ness testified  to  facts  tending  to  prove  the  mother  an  Indian. 

On  the  part  of  the  defendant,  it  was  proved  that  the  mother 
was  purchased  as  a  slave,  and  had  continued  in  that  capacity  for 
fifty-five  years;  that  both  mother  and  daughter  were  considered 
as  slaves,  and  stated  by  the  person  under  whom  the  defendant 
claimed  to  be  such. 

Elisha  Boudinot,  for  the  prosecution.  However  variant  the 
testimony  of  the  witnesses  may.be  upon  other  points,  they  all 
agree  that  the  mother  of  the  prisoner  was  an  Indian.  This  fact, 
which  is  not  denied,  furnishes  at  least  prima  facie  evidence  of 
her  being  free.  The  slavery  of  the  unfortunate  wretches  who 
have  been  transported  from  Africa,  however  discordant  it  may  be 
with  the  fundamental  principles  of  our  religion  and  our  policy, 
has  been  so  long  recognized  that  greater  evils  would  ensue 

*  Though  particular  instances  of  lewdness  may  be  given  in  evidence,  yet 
general  bad  character  between  the  promise  and  the  breach,  cannot  be  given  in 
evidence  in  mitigation  of  damages.  3  Mass.  139. 


AP1UL  TERM,  1797.  375 

State  v.  Van  Waggoner. 

from  giving  them  liberty,  than  from  retaining  them  in  their  state 
of  servitude.  But  no  views  of  policy  authorize  the  slavery  of 
the  aborigines  of  this  country.  It  is  impossible  to  render  them 
slaves  under  our  laws,  and  the  proof  of  being  an  Indian  is  equiv- 
alent to  proof  of  freedom. 

At  any  rate,  the  court  will  not  permit  persons  of  this  descrip- 
tion to  be  detained  as  slaves,  without  the  most  unequivocal  proof 
that  this  is  their  actual  state.  When  a  negro,  detained  as  a  slave, 
claims  his  freedom,  he  is  bound  to  prove  the  fact  that  he  is  free; 
the  presumption  of  the  law  is  the  other  way.  In  the  case,  how- 
ever, of  an  Indian,  he  must  always  be  presumed  free,  and  strong 
evidence  ought  to  be  required  to  overturn  this  presumption. 
The  question  then  is,  whether  the  testimony  in  this  case  is  suffi- 
cient to  authorize  the  court  to  say,  that  the  prisoner  is  legally  a 
slave. 

M '  Wliorter  and  R.  Stockton,  contra.  The  first  principle 
upon  which  this  application  is  made,  appears  to  be  founded  in 
error.  The  argument  is,  that  proof  of  being  an  Indian  is  equiva- 
lent to  proof  of  freedom ;  but  Indians  are  recognized  as  slaves, 
by  various  acts  of  the  legislature  of  this  state,  and  fn  Pennsylva- 
nia, the  law  is  precisely  the  same.  They  are  placed  upon  the 
same  footing  with  Africans,  and,  when  being  detained  as  slaves, 
they  prefer  a  claim  for  their  freedom,  they  are  bound  to  prove  a, 
right  to  be  libei-ated.  In  the  "act  for  regulating  of  slaves," 
passed  March  11,  1713-14,  (Allinson  18)  they  are  coupled  with 
negroes :  every  section  of  that  act  uses  the  words  "  negro,  In- 
dian, or  mulatto  slave."  In  the  act  of  May  10,  1768,  (Ib.  307) 
regulating  the  trial  of  slaves  for  murder  and  other  crimes,  the 
same  language  is  used.  And  in  the  "act  laying  a  duty  on  the 
purchasers  of  slaves  imported  into  this  colony,"  passed  Novem- 
ber 16,  1769,  (Ib.  315)  no  discrimination  is  made  between  ne- 
groes and  Indians.  The  slavery  of  Indians  therefore,  by  our  laws, 
stands  precisely  upon  the  same  footing,  and  is  to  be  governed 
by  the  same  rules  as  that  of  Africans.  From  the  case  of  Pirate 
v.  Dalby,  (1  Dall.  167)  it  appears  that  our  law  is  similar  to  that 
of  Pennsylvania,  in  this  respect.  It  will  be  difficult  then,  to  draw 
the  line,  and  to  prescribe  a  certain  degree  of  proof  in  one  case, 
and  a  greater  degree  of  it  in  another,  as  requisite  to  establish  the 
same  facts.  It  would  be  introducing  a  new  law,  to  say  that  less 


376  NEW  JEESEY  SUPREME  COUET. 

State  v.  Van  Waggoner. 

testimony  shall  bo  required  to  establish  the  slavery  of  an  Indian, 
than  of  a  negro. 

But  these  considerations  are  not  absolutely  essential  in  this 
case,  and,  even  admitting  the  doctrine  that  has  been  contended 
for,  it  is  conceived  that  the  proof  of  the  slavery  of  the  mother  of 
Eoso,  and  of  Eose  hersdf,  has  been  as  precise  as  any  that  could 
be  given  in  any  case.  The  loose  evidence  that  is  opposed  to  it, 
•would  scarcely  warrant  the  court  in  giving  freedom  to  a  person 
•who,  with  her  mother,  has  been  held  and  considered  as  a  slave 
lor  so  great  a  length  of  time. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court. 

The  habeas  corpus,  in  this  case  seems  to  have  been  sued  out 
under  the  supposition  that  an  Indian  could  not  be  a  slave  under  our 
laws.  But  this  idea  is  contradicted  by  various  acts  of  assembly, 
gome  of  which  have  been  cited  on  the  argument,  and  indeed  it  can- 
not be  urged  with  any  shew  of  reason.  They  have  been  so  long  re- 
cognized as  slaves  in  our  law,  that  it  would  bo  as  great  a  violation 
of  the  rights  of  property  to  establish  a  contrary  doctrine  at  the 
present  day,  as  it  would  in  the  case  of  Africans:  and  as  useless  to 
investigate  the  manner  in  which  they  originally  lost  their  freedom. 

With  regard  to  the  proof  in  this  case,  that  which  has  been  ad- 
duced on  the  part  of  the  state  appears  to  have  been  almost  ex- 
clusively founded  upon  the  supposition  which  I  have  already 
shewn  to  be  erroneous.  The  defendant  has  proved,  that  the 
mother  of  Eoso  was  purchased  as  a  slave  many  years  ago ;  that 
for  upwards  of  fifty  years  the  mother  and  daughter  have  beeu 
held  as  slaves,  and  no  claim  for  freedom  was  ever  thought  of 
before  the  year  1796.  The  slender  circumstances  and  vague 
expressions  on  the  other  side  are  insufficient  to  overturn  this 
testimony.  We  therefore  think  that  the  slavery  of  Eose  has 
been  sufficiently  proved,  and  that  she  must  be  remanded  to  the 
custody  of  her  master. 

NOTE. — The  question  as  to  the  slavery  of  Indians,  has  on 
several  occasions  come  before  the  courts  of  Virginia,  and  the 
doctrines  which  have  been  held  there  are  liberal,  and  honour- 
able to  the  respectable  judges  by  whom  they  have  been  delivered. 
In  Jenkins  v.  Tom,  I  Wash.  123;  Coleman  v.  Dick,  76.  233; 
Hudgins  v.  Wright,-!  Hen.  and  Munf.  123;  Pallas  v.  Hill.  2 


APEIL  TEEM,  1797.  377 

Burnet  v.  Bryan. 

Hen.  and  Munf.  149,  it  is  laid  down,  that  when  an  Indian  is 
claimed  as  a  slave,  the  onus  probandi  is  thrown  upon  the  claim- 
ant. The  slavery  of  Indians  was,  in  that  state,  founded  upon  an 
express  act  of  assembly,  in  the  year  1679,  which  declared  Indian 
prisoners,  taken  in  war,  to  be  slaves.  This  act  was  repealed  in 
1691,  and  it  is  now  held  that  no  native  American  Indian  brought 
into  Virginia  since  1691,  could  under  any  circumstances  be  law- 
fully made  a  slave. 


Executors  of  BURNET  against  administrators  of  BRYAN. 

IN    ERROR. 

When  there  is  open  running  account  for  some  years,  although  some  of  the 
items  may  be  of  more  than  six  years'  standing,  the  claim  is  not  barred  by  the 
statute  of  limitations. 

Where  A.  has  a  demand  against  B.  which  is  not  barred  by  the  statute,  ar£ 
B.  dies  intestate,  the  statute  will  not  run  until  letters  of  administration  ar 
taken  out;  though  there  may  be  an  executor  de  son  tort. 

The  plaintiffs  in  error  had  commenced  this  action  in  the  court 
below.  The  suit  was  brought  to  recover  a  book  debt,  and  by 
the  account  presented  and  proved,  it  appeared  that  the  item:* 
charged  were  for  medicines  and  attendance  as  a  physician,  some 
of  which,  however,  at  the  time  of  the  death  of  the  intestate, 
were  of  more  than  six  years'  standing.  During  every  year  some 
items  were  charged,  excepting  one,  and  nearly  all  of  them  wcro 
within  six  years  preceding  Bryan's  death.  No  letters  of  admin- 
istration were  taken  out  from  the  year  1777,  when  the  intestate 
died,  until  the  year  1794,  within  one  year  after  which  the  present 
action  was  commenced.  In  addition  to  the  foregoing  circum- 
stances, it  further  appeared  from  the  bill  of  exceptions,  that  soon 
alter  the  death  of  Daniel  Bryan,  the  intestate,  one  of  his  sons 
had  called  upon  the  different  creditors,  in  order  to  ascertain 
their  respective  demands,  and  had  actually  paid  the  accounts 
of  two  of  them.  He  had  called  upon  Burnet,  for  his  account, 
who  told  him  that  he  would  not  distress  the  family  by  an  im- 
mediate demand  but  would  wait. 

The  defendants  pleaded  the  statute  of  limitations,  and  the 
court  being  of  opinion  that  the  demand  was  barred  by  the  stat- 
ute, a  bill  of  exceptions  was  taken  to  their  opinion,  and  sealed 


378  NEW  JERSEY  SUPREME  COURT. 

Burnet  v  Bryan. 

by  the  court.  Otherquestions  occurred  in  the  case,  which  were  in- 
cluded in  another  bill  of  exceptions,  but  as  they  were  not  consid- 
ered in  the  opinion  of  the  court,  it  is  unnecessary  to  state  them. 

M '  Whorter,  for  the  plaintiffs  in  error.  The  question  is,  whether 
under  all  the  circumstances  of  this  case,  the  claim  of  the  plain- 
tiffs is  barred  by  the  statute  of  limitations?  It  appears  that 
the  account  between  the  testator  and  the  intestate,  was  an  open 
and  running  account,  some  of  the  items  of  which  were  beyond 
the  six  years,  but  as  others  were  within  that  period,  and  the 
account  never  was  deserted,  the  testator  at  the  time  of  the  death 
of  Bryan,  might  have  sued  for,  and  recovered  the  entire  debt. 

Subsequent  to  this  period,  there  was  no  person  against  whom 
an  action  could  be  brought.  No  letters  of  administration  were 
taken  out,  and  no  laches  can  be  attributed  to  the  plaintiffs  or 
their  testator.  In  Joliffe  v.  Pitt,  2  Vern'  694,  it  was  argued,  that 
while  there  was  no  executor  against  w  aom  the  action  could  be 
brought,  the  statute  did  not  run,  and  the  lord  chancellor  seems 
to  have  been  of  this  opinion.  In  1  Eq,  Ca.  Abr,  305,  this  case  is 
considered  as  warranting  this  general  doctrine.  4  Bac.  Abr,  480, 
the  same  case  is  cited  as  establishing  the  same  principle.  So  in 
Gary  et  ux.  v.  Stephenson,  2  Salk.  421,  4  Mod.  372,  it  was  held  that 
the  title  of  the  plaintiffs  commenced  by  taking  out  letters  of 
administration,  and  as  the  action  was  instituted  within  six  years 
thereafter,  the  statute  did  not  operate  as  a  bar. 

Ab.  Ogden,  contra.  It  appears  that  some  of  the  items  in  this 
account  are  of  twenty-six  years'  standing,  and  the  whole  of  them 
at  least  twenty  years  old:  in  such  a  case  it  is  impossible  for 
the  defendants  to  come  prepared  to  disprove  thorn,  and  inde- 
pendent of  the  statute  of  limitations,  the  presumption  is,  that 
the  account  has  been  long  since  settled.  Even  in  the  case  of  a 
bond,  the  law  will  presume  it  to  have  been  paid  after  a  delay  of 
twenty  years.  1  Bur.  434.  4  Bur.  1963.  1  Term  Rep.  271.  2 
Atk.  144.  6  Mod.  23. 

It  is  an  insufficient  answer  to  this  to  say,  that  as  letters  of  ad- 
ministration had  not  been  taken  out,  there  was  no  person  against 
whom  an  action  could  be  sustained.  It  appears  that  one  of  the 
sons  of  the  intestate  had  actually  called  upon  and  settled  with 
some  of  the  creditors,  and  had  applied  to  the  defendant's  testa- 
tor for  his  account.  Here  there  was  an  opportunity  presented 


APEIL  TERM,  1797.  379 

Burnet  v.  Bryan 

to  have  it  adjusted  and  paid,  and  from  this  time,  at  least,  the 
statute  should  be  considered  as  running. 

But^the  foundation  of  this  argument  fails.  The  son  of  the 
intestate  had  made  himself  executor  de  son  tort,  by  thus  inter- 
meddling with  his  father's  affairs,  and  therefore  rendered  himself 
liable  to  an  action  by  any  creditor.  Padget  v.  Priest,  2  Term 
Hep.  97.  Edwards  v.  Harben,  Ib.  287.  The  acts  performed  by 
Huch  executor,  would  have  been  valid  and  binding.  Parker  v. 
Kelt,  1  Lord  Ray.  66. 

A.  Ogden,  in  reply.  It  is  not  intended  to  dispute  the  law,  that 
jwi  executor  de  son  tort  renders  himself  liable  by  an  improper 
und  illegal  interference  in  the  concerns  and  business  of  the 
deceased ;  but  it  is  presumed  that  every  creditor  is  not  considered 
as  relinquishing  his  claims  if  he  does  not  think  proper  to  sue  him. 
An  option  is  indeed  given  him,  but  the  doctrine,  that  he  is  im- 
peratively bound  to  pursue  this  remedy,  is  novel.  In  this  case, 
however,  there  is  no  proof  that  the  creditor  knew  that  the  eon 
had  rendered  himself  liable.  He  cannot  be  presumed  cognizant 
of  what  was  done  with  other  creditors;  he  himself  was  merely 
galled  upon  for  his  account,  and  this  certainly  would  furnish  no 
ground  of  action. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  The  plaintiffs, 
as  executors  of  William  Burnet,  have  brought  this  action  to 
recover  the  amount  of  charges  in  the  books  of  their  testator,  against 
the  defendants  intestate,  for  medicine  and  attendance  as  a  physi- 
cian. The  defendants  have  pleaded  three  pleas,  one  of  which, 
the  statutes  of  limitations,  will  alone  come  under  consideration. 

On  an  inspection  of  the  account,  it  appears  that  it  consists  of 
a  number  of  items,  charged  in  a  regular  manner,  from  the  year 
1760  to  the  year  1770,  the  period  of  the  intestate's  death.  Some 
items  appear  in  every  year  of  this  period,  excepting  the  year 
1765,  and  some  of  them  are  for  medicines  and  attendance  during 
the  last  illness  of  the  intestate. 

It  further  appears,  that  one  of  Bryan's  sons,  shortly  after  the 
decease  of  his  father,  acted  as  executor,  so  far,  at  least,  as  to 
call  upon  several  of  the  creditors,  with  two  of  whom  he  actually 
settled.  He  called  upon  Mr.  Burnet,  who,  in  a  liberal  and  hon- 
ourable manner  declared,  that  he  would  not  distress  the  family. 


380  NEW  JEESEY  SUPREME  COURT. 

Burnet  v.  Bryan. 

No  letters  of  administration  were  taken  out  until  the  year  1794, 
and  within  a  year  afterwards  this  action  was  commenced. 

These  appear  to  be  the  principal  circumstances  of  the  case, 
and  we  are  to  determine,  whether  the  court  below  were  correct 
in  declaring,  that  under  them  the  claim  of  the  plaintiffs  was 
barred  by  the  statute  of  limitations. 

We  are  of  opinion,  on  the  authority  of  the  case  cited  from  2 
Vernon,  recognized  and  confirmed  as  it  has  been,  that  the  whole 
period,  from  the  death  of  the  intestate  till  the  time  when  the 
letters  of  administration  were  taken  out,  is  fully  accounted  for. 
During  this  interval,  the  statute  of  limitations  did  not  run, 
because  there  was  no  person  against  whom  the  plaintiffs  wore 
bound  to  bring  their  action.* 

This  reduces  the  cause  to  a  single  question,whether  Burnet  him- 
self was  bound  by  the  statute  in  1770,  at  the  time  of  the  death  of 
the  intestate?  and  upon  this  we  are  of  opinion  that  he  was  not, 
and  for  the  following  reasons: — The  account  appears  to  be  open 
and  unsettled,  continued  from  year  to  year,  and  never  deserted. 
According  to  Lord  Hardwicke,  in  Welford  v.  Liddel,  2  Ves.  400, 
the  exception  in  the  statute,  with  regard  to  accounts,  was  to 
prevent  dividing  the  account  where  it  was  a  running  account, 
when  perhaps  part  might  have  begun  long  before,  and  the  account 
never  settled.  It  was  determined  in  Crunch  v.  Xirkman,  Peake's 
fV.  P.  121,  that  though  the  statute  excludes  running  accounts 
between  merchants  only  yet  when  there  is  a  mutual  account 
of  any  sort  between  plaintiff  and  defendant,  an  item  for 
which  credit  has  been  given  within  six  j-cars,  is  evidence  of  a 
promise  to  pay  the  balance,  and  will  take  the  case  out  of  the 
statute.  This  doctrine  appears  to  be  sanctioned  by  Watson, 
Law  of  Partnership,  208.f 

Upon  the  whole,  the  defence  in  this  case  is  an  unrighteous  one. 
The  testator  declined  bringing  forward  his  claim  from  the  most 
liberal  and  praiseworthy  motives;  he  was  fearful  of  distressing 

*See  the  case  of  Webster  v.  Webster,  10  Vesey  93,  where  it  was  held,  that  this 
was  an  insufficient  answer  to  a  plea  of  the  statute,  when  the  testator  died  in 
1786,  and  probate  WHS  not  taken  till  1802,  because  the  defendant  had  possessed 
himself  of  the  personal  estate,  and  might  have  been  sued  as  executor  de  son  tort 
previous  to  1792. 

{•See  Catling  v.  Skoulding,  6  Term  Rep  189;  Nichols  v.  Leavenworth,  1  Day, 
243;  Cogswell  v.  Doltiver,  2  Mass.  Term  Rep.  217,  where  the  same  doctrine  ia 
laid  down.  But  see  Miller  v.  Colwell,  2  South,  577 ;  though  one  item  of  the 
account  is  within  six  years,  it  does  not  take  the  whole  out  of  the  statute. 


APEIL  TERM,  1797.  381 

Austin  v.  Nelson. 

the  family,  and  did  the  circumstances  of  the  case  render  it  neces- 
sary, we  should  consider  the  son  as  an  authorized  agent,  and  his 
proceedings  as  an  acknowledgment  binding  on  the  defendants. 

Judgment  reversed. 

CITED  IN  DeXay  v.  DarraKs  ad.,  2  Or.  288,  297.    See  Nix.  Dig.  436  \  15. 


AUSTIN,  executor  of  NELSON,  against  NELSON. 

A  statute  was  passed  on  the  9th  of  March,  1797,  which  declared,  that  no 
action  should  be  removed  from  any  of  the  courts  of  Common  Pleas  to  the 
Supreme  Court  by  habeas  corpus,  after  plea  pleaded,  a  plea  in  bar  excepted ; 
held,  that  where  a  habeas  corpus  was  presented  on  the  10th  of  March,  after  the 
general  issue  pleaded  and  the  cause  removed,  aprocedendo  should  issue. 

This  was  an  action  of  trover,  which  had  been  commenced  in 
the  Common  Pleas  of  Salem  county :  to  which  defendant  pleaded 
non  cuL  A  habeas  corpus  had  been  offered  by  the  defendant, 
and  allowed  by  the  court  on  the  10th  of  March  last;  and  the 
causes  being  accordingly  removed  into  this  court,  a  motion  was 
now*  made  by  Leake,  for  the  plaintiff,  for  a  procedendo. 

JJeake,  for  the  motion.  The  act  of  March  9,  1797,  (Pamph., 
Laws  228  *)  in  the  sixth  section,  explicitly  enacts,  that  "  no  action, 
shall  be  removed  from  any  of  the  courts  of  Common  Pleas  to  tho 
Supreme  Court,  by  a  writ  of  habeas  corpus,  after  a  plea,  has  been 
filed  in  such  action,  a  plea  in  bar  excepted."  The  only  ques- 
tion, then,  is,  whether  this  case  is  embraced  within  the  statute. 
The  law  is  dated  March  9th,  the  habeas  corpus  was  allowed  on 
the  10th  of  the  same  month.  Under  the  English  law,  a  statute 
is  considered  as  in  force  from  the  first  day  of  the  session  at 
which  it  is  passed.  6  Bac.  Abr.  370.  In  New  Jersey,  a  partic- 
ular date  is  attached  to  every  law,  and  it  is  considered  as  binding 
from  that  time. 

The  meaning  of  the  legislature  here  is  perfectly  apparent,  and 
the  maxim,  nulla  expositio  contra  verba  fienda  est,  is  the  only 
rule  that  it  is  necessary  to  keep  in  view.  2  Slack.  Com.  379. 
When  an  act  is  conceived  in  clear  and  express  terms;  when  tho 
sense  is  manifest,  and  leads  to  nothing  absurd,  it  is  unreasonable 
to  refuse  the  sense  which  it  naturally  presents.  It  is  not  per- 
mitted to  interpret  what  has  no  need  of  interpretation.  Vattel 
216,  sec.  263.  Lord  Mansfield,  in  Eldridge  v.  Knott,  Cowp.  215,  held 

*  Repealed  March  16,  1798,  Pamph.  Laws  407. 


382  NEW  JERSEY  SUPREME  COURT. 

Austin  v.  Nelson. 

that  the  statute  of  limitations  was  so  positive  a  bar  that  it 
operated  conclusively,  although  both  court  and  jury  were  satis- 
fied of  the  justness  of  the  claim.  The  term  plea  in  bar,  has 
received  a  precise  and  definite  meaning  in  acts  of  the  legislature, 
and  it  would  be  manifestly  improper  to  refer  to  the  books  of  prac- 
tice in  the  courts  of  England,  in  order  to  find  a  meaning  of  a  term 
the  signification  of  which  is  clear  and  unambiguous.  By  the  fifth 
section  of  the  practice  act  of  August  30, 1784,  the  legislature  call 
a  plea  in  bar  "  a  plea  that  the  action  is  illegal."  This  is,  strictly 
speaking,  a  plea  in  abatement,  but  it  shews  the  signification 
which  the  legislature  has  attached  to  the  expression. 

L.  H.  Stockton  and  E.  Stockton,  contra. — 1.  Acts  of  assembly 
do  not  go  into  operation  in  this  state  until  they  are  publicly  pro- 
mulgated. Here  the  act  was  passed  on  the  ninth  of  March,  at 
Trenton,  and  the  cause  was  removed  on  the  succeeding  day,  at 
Salem.  The  same  principle  which  has  induced  our  courts  here- 
tofore to  contravene  the  established  English  law,  which  renders 
statutes  operative  from  the  commencement  of  the  session  of  par- 
liament during  which  they  are  passed,  requires  that  they  should 
not  be  regarded  as  binding  until  they  have  been  published.  It  is 
equally  unjust,  equally  hostile  to  the  fundamental  principles  of 
our  government,  to  compel  an  individual  to  conform  his  conduct 
to  a  law  of  which  he  could  not  be  cognizant,  as  to  one  which 
was  not  in  existence  at  the  time  that  he  acted. 

2.  At  any  rate,  it  is  conceived  that  this  law,  if  extended  by 
construction  to  this  case,  is  ex  post  facto,  and  therefore  uncon- 
stitutional.    The  right  to  remove  his  cause  was  a  vested  right, 
belonging  to  every  party  in  a  suit,  and  it  could  not  legally  bo 
taken  from  him.     If  such  a  law  is  considered  as  extending  only 
to  suits  which  should  bo  afterwards  commenced,  it  could  not 
operate  unjustly,  but  would  be  in  every  respect  unobjectionable. 
When,  however,  it  operates  upon  actions  already  pending,  its 
tendency  is  to  deprive  the  party  of  a  fixed  and  vested  right,  one 
in  the  contemplation  of  the  parties  originally,  and  it  is  therefore 
retroactive. 

3.  This  case  comes,  however,  within  the  exception,     A  plea 
in  bar  had  actually  been  filed.     It  is  now  said,  that  the  legisla- 
ture meant  a  plea  in  abatement.     They  have,  however,  used  a 
term  of  settled  and  technical  meaning;  they  have  employed  an 


APillL  TERM,  1797.  383 

Austin  v.  Nelson. 

artificial  expression,  and  the  presumption  is,  they  knew  what 
meaning  it  conveyed.  The  former  act,  which  has  been  referred 
to,  even  if  allowed  to  supply  a  meaning,  can  scarcely  answer  the 
purpose,  the  expression  is,  "a  plea  in  bar  that  the  action  is  ille- 
gal." The  legislature  cannot  be  understood  to  mean,  that  this 
is  the  only  matter  that  can  be  pleaded  in  bar  to  an  action:  they 
have  been  mistaken  in  styling  a  plea  of  this  description  a  plea 
in  bar,  but  they  never  intended  to  imply,  that  every  plea  in  bar 
went  to  the  legality  of  the  action. 

Per  curiam.  In  England,  we  take  the  law  to  be  settled,  that 
a  statute  operates  from  the  first  day  of  the  session  during  which 
it  is  enacted,  (Latless  v.  Holmes,  4  Term  Rep.  660)  and  we  do  not 
know  that  any  other  rule  has  ever  been  adopted  in  this  state. 
Even  in  criminal  cases  this  doctrine  has  been  uniformly  adopted 
in  that  country,  and  in  a  case  highly  penal,  before  this  court, 
considerable  anxiety  was  felt,  whether  we  were  authorized  to 
adopt  another  rule.  The  difficulty,  however,  was  avoided  by  the 
verdict  of  the  jury,  which  rendered  its  decision  unnecessary.  In 
the  present  case,  however,  the  question  does  not  arise;  here  the 
act  was  passed  before  the  cause  was  removed,  and  we  think  the 
case  embraced  by  the  statute.  The  doctrine  of  a  statute's  taking 
effect  from  its  promulgation,  arose  during  those  ignorant  ages 
when  the  custom  prevailed  of  reading  all  the  statutes  publicly, 
by  the  sheriff,  but  it  has  long  been  exploded,  and  we  cannot 
re-adopt  it. 

Does  this  case,  then,  come  within  the  exception?  "We  think 
not.  If  the  term  plea  in  bar  is  to  receive  the  construction  given 
to  it  in  the  books  of  English  practice,  the  effect  of  the  act  will 
be  nearly  destroyed,  and  the  proviso  will  be  nearly  as  extensive 
as  the  prohibition.  The  term,  however,  has  received  a  definite 
and  precise  meaning  from  the  legislature;  the  statutes  in  which 
it  is  used  are  in  pari  materia,  and  we  must  presume  that  the 
same  words  were  intended  to  convey  the  same  meaning.*  Wo 
are  therefore  of  opinion,  that  the  present  cause  was  improperly 
removed  into  this  court,  and  that  a  precedendo  must  issue. 

Precedendo  awarded. 

*  See  6  Bac.  Abr,  379.  Words  and  phrases,  the  meaning  of  which  in  a  statute 
has  been  ascertained,  are,  when  used  in  a  subsequent  statute,  to  be  understood 
in  the  same  sense. 


384  NEW  JERSEY  SUPREME  COURT. 


Peppinger  v.  Low. 


[MAY  TERM,  1797.] 


PEPPINGER  agaimt  LOW. 

In  an  action  for  the  breach  of  a  promise  of  marriage,  the  declarations  of  the 
plaintiff,  that  she  had  promised  to  marry  the  defendant,  made  long  before  the 
sail  brought,  are  good  evidence  for  the  plaintiff  to  shew  the  mutuality  of  the 
contract. 

This  was  an  action  brought  to  recover  damages  sustained  by 
the  plaintiff,  in  consequence  of  a  breach  of  a  marriage  contract. 
At  the  trial  before  Mr.  Justice  Smith,  at  the  Somerset  Nisi 
Prius,  his  honour  had  admitted  the  plaintiff's  declarations,  mad' 
to  third  persons  long  before  this  action  was  instituted,  stating, 
that  she  had  engaged  to  many  the  defendant,  and  her  willing 
ness  to  marry  him,  in  order  to  prove  the  mutuality  of  the  con 
tract.  The  jury  found  a  verdict  for  the  plaintiff. — A  motion  wa  i 
made  for  a  new  trial,  on  the  ground  that  the  judge  had  admitte  i 
improper  evidence  to  go  to  the  jury.  The  motion  was  argued  a  c 
November  Term,  1796,  and  the  opinion  of  the  court  was  no>f 
delivered  by 

KINSEY  C.  J.  The  ground  upon  which  this  application  ia 
made,  is,  that  illegal  testimony  was  given  at  the  trial.  Thiu 
was  an  action  for  the  breach  of  a  contract  of  marriage,  and  the 
judge  admitted  evidence  of  declarations  made  by  the  plaintiff 
herself  to  third  persons,  a  long  time  before  suit  brought,  to 
prove  the  mutuality  of  the  engagement. 

In  general  it  may  be  observed,  that  all  the  rules  of  evidence 
depend  upon  the  nature  of  the  case  and  the  facts  which  are  to 
be  proved ;  and  the  principles  to  bo  observed  in  admitting  or  re- 
jecting testimony,  must,  in  some  measure,  be  accommodated  to 
the  particular  circumstances  which  are  in  issue,  taking  care,  how- 
ever, to  adhere,  as  far  as  possible,  to  general  rules  of  law.  The 
case  before  us  seems  to  be  one  of  that  description,  in  which  a 
strict  application  of  the  general  rule,  that  a  party's  own  declara- 
tions shall  never  be  admitted  to  support  the  action,  would  bo 
attended  with  inconvenience  and  injustice.  This  action  is  founded 
upon  a  promise  of  marriage  by  the  defendant,  and  a  subsequent 
breach  of  this  engagement;  and  the  law  requires,  what  in  itself 
is  indeed  highly  reasonable,  that  it  should  be  made  to  appear 
that  the  plaintiff  was  willing  to  marry  the  defendant,  or,  in  other 


MAY  TERM,  1797.  385 


Peppinger  v.  Low. 


words,  that  there  was  an  actual  and  mutual  contract  subsisting 
between  the  parties,  and  not  a  mere  offer  on  the  part  of  the 
defendant,  which  the  plaintiff  might  be  at  liberty  to  accept  or 
reject.  The  obligation  must  be  mutual,  or  it  is  not  a  contract. 
The  declaration,  therefore,  always  states  mutual  promises,  and 
they  must  be  proved  as  laid.  The  promise  on  the  part  of  the  man 
is,  indeed,  in  an  action  against  him,  the  gist  of  it,  and  it  must,  in 
some  manner  or  another,  be  proved  on  the  trial.  But  it  can  sel- 
dom occur  that  positive  testimony  can  be  adduced  to  shew  an 
express  promise  upon  his  part,  and  it  is  still  more  difficult  to  make 
out,  by  direct  evidence,  the  assent  of  the  woman.  The  privacy 
with  which  these  arrangements  are  almost  universally  made  ; 
the  natural  timidity  of  the  sex ;  and  the  general  customs  and 
opinions  of  the  world,  which  seem  to  restrain  the  woman  from 
making  use  of  those  open  and  direct  avowals  of  a  marriage  con- 
tract, which  may  sometimes  be  proved  upon  the  man,  render 
this  degree  of  testimony  almost  impossible.  It  is  therefore  suffi- 
cient, in  an  action  by  a  woman  for  a  breach  of  a  contract  of  this 
kind,  to  satisfy  the  jury  that  she  was  willing  to  have  complied 
with  the  terms  of  the  contract,  and  that  it  was  not  broken. off  by 
her.  In  order  to  establish  this,  it  appears  to  be  admissible,  in 
such  a  case,  to  prove,  that  before  the  action  brought  the  plaintiff 
had  declared  her  willingness  to  marry  him,  or  other  expressions 
of  the  same  import.  This  would  be  prima  facie  evidence  that  she 
had  assented  to  his  proposals,  and,  if  the  promise  upon  his  part 
had  been  proved,  throws  upon  him  the  necessity  of  shewing  that 
there  was  a  refusal  subsequently  by  her.  The  case  of  Hutton  v. 
Mansell,  6  Mod.  172,  is  in  point,  and  the  language  of  Holt,  by 
whom  it  was  ruled,  is  applicable,  in  its  full  extent,  to  tho  case 
before  the  court.  Evidence  had  been  given  proving  an  express 
promise  on  the  part  of  the  man,  but  none  on  the  woman's  side. 
Per  Holt.  "If  there  be  an  express  promise  by  the  man,  and  that 
it  appear  the  woman  countenanced  it,  and,  by  her  actions  at  th» 
time,  behaved  herself  so  as  if  she  agreed  to  the  matter,  though 
there  be  no  actual  promise,  yet  that  shall  be  sufficient  evidence* 
of  a  promise  on  her  side."  He  also  stated,  that  in  a  case  beforo> 
Chief  Baron  Montagu,  the  same  point  had  been  ruled,  when  be> 
himself  was  counsel,  and,  being  dissatisfied  with  the  determina- 
tion, he  had  proposed  the  question  to  eminent  men  of  thosa. 
times,  who  all  concurred  in  opinion  with  the  chief  baron. 
VOL.  I.  Z 


386  NEW  JERSEY  SUPREME  COURT. 

Fennimore  v.  Childs. 

Unquestionably  the  present  case  is  at  least  as  strong  as  that 
•which  has  been  referred  to.  What  a  woman  expressly  says  can- 
not, upon  principle,  be  distinguished  from  those  acts  which  wore 
held  not  merely  to  bo  admissible,  but  "sufficient  evidence"  of  a 
promise  by  her.  It  is  surely  "countenancing"  and  "behaving 
as  if  she  had  agreed  to  the  matter,"  and,  in  our  opinion,  is  less 
equivocal  evidence  of  her  having  assented  to  the  defendant's 
proffer  of  marriage.  Mere  exterior  conduct  and  behaviour  may 
be  ambiguous;  it  may  be  misunderstood;  it  may  bo  insincere  on 
the  part  of  the  woman;  but  declarations  and  acknowledgments 
by  her,  to  other  persons,  that  she  was  engaged,  are  certain,  un- 
equivocal, and  obligatory.  That  the  language  comes  from  her- 
self, is  no  stronger  an  objection  than  it  would  be  to  conduct  and 
behaviour  which  proceed  equally  from  the  same  source. 

Let  men  be  cautious  in  making  no  promises,  except  such  as 
they  intend  to  perform,  or  for  the  non-performance  of  which  they 
shall  be  able  to  assign  a  sufficient  reason,  and  they  will  be  perfectly 
safe :  the  other  sex,  if  evidence  of  this  kind  is  excluded,  will  not  be 
upon  the  same,  or  an  equal  footing.  We  are  therefore  of  opinion 
with  the  judge  who  tried  the  cause,  that  such  evidence  was  admis- 
sible, and  the  rule  for  a  new  trial  must  therefore  be  discharged.* 

Rule  discharged. 

CITED  IN  Coil  v.  Wallace,  4  Zab.  310. 


FENNIMORE  agaimt  CHILDS. 

OH  CEBTIORABI. 

'Though  referees  are  not  held  to  the  extreme  strictness  of  the  rules  of  evi- 
dence, the  admission  of  the  testimony  of  one  of  the  parties  will  vitiate  their 
award. 

This  cause  had  been  referred  to  arbitrators,  and  the  judgment 
of  the  justice  entered  upon  their  award.  The  objections  now 
urged  on  behalf  of  the  plaintiff  in  certiorari  were — 1.  That  the 
plaintiff  below  was  admitted  to  give  testimony  in  his  own  cause. 
2.  That  the  referees  decided  upon  his  testimony  alone.  3.  That 
two  of  the  arbitrators  were  of  opinion  with  the  defendant  be- 
low, but  signed  the  award  under  a  mistake.  4.  That  a  witness 

*  In  this  action,  evidence  of  an  express  promise  not  required,  but  may  be 
inferred  from  circumstances  usually  accompanying  such  a  relation  between  the 
parties.  Wightman  v.  Coatet,  15  Mats.  Rep.  1. 


MAY  TERM,  1797.  387 


Fennimore  v.  Childs. 


was  objected  to  on  the  ground  of  interest,  but  his  evidence  was 
admitted  without  his  being  put  to  his  voiredire.  5.  That  illegal 
testimony  was  received. 

Griffith,  contra.  Whatever  errors  may  have  been  committed 
by  the  referees  in  this  case,  or  however  improperly  and  illegally 
they  may  have  conducted  themselves,  these  objections  are  not 
inquirable  into  now,  or  in  this  place.  Application  should  always 
be  made  to  the  court  under  whose  authority  the  arbitrators 
acted;  and  in  England  the  court  of  equity  will  not  grant  relief, 
unless  it  has  been  refused  by  the  court  of  law.  Kyd  230,  232, 
(333,  336.)  This  is  the  language  of  the  statute  (Ib.~)  and  it  has 
been  uniformly  adhered  to.  It  would  indeed  wear  a  singular 
appearance,  to  permit  the  justice  to  enter  his  judgment  upon  an 
award,  which  had  been  improperly  obtained,  and  then  to  bring 
the  cause  by  certiorari  to  this  court,  involving  the  parties  in  much 
useless  and  unnecessary  expense.  Acting  as  he  did  upon  the 
circumstances  of  the  case  as  they  appeared  before  him,  with  no 
objections  urged  to  the  legality  of  the  proceedings  of  the  arbi- 
trators, the  judgment  of  the  justice,  was  perfectly  correct,  and 
ought  not  to  be  examined  into.  Had  application  been  made  to 
him  for  relief,  and  had  he  decided  erroneously,  the  objections 
would  then  have  gone  immediately  and  directly  to  the  judgment. 

2.  With  regard,  however,  to  the  exceptions  that  have  been 
taken,  the  case  of  the  present  plaintiff  is  materially  defective  in 
one  particular.     Referees  are  not  tied  down  by  the  arbitrary 
rules  of  evidence,  but  it  must  always  appear  that  they  have  gone 
contrary  to  the  real  justice  of  the  case,  or  technical  .objections 
and  informalities  will  be  overlooked.     It  does  not  appear  that 
any  injustice  has  been  done,  and  therefore  no  ground  is  laid  for 
the  interposition  of  the  court.     2  Swift's  System  7. 

3.  Whatever  may  be  the  foundations  of  the  rule  which  pre- 
cludes parties  from  giving  evidence  in  their  own  causes,  and  how- 
ever salutary  and  wholesome  it  may  be  in  the  general  adminis- 
tration of  justice,  still  there  are  cases  in  which  exceptions  are 
admitted.    It  is  not  a  fatal  objection  to  an  award,  that  the  state- 
ment of  the  parties  themselves  was  listened  to.  Kyd  2,  3.   Lines 
v.  Miller,  1  Dall.  188.     In  this  case,  it  has  further  been  sworn, 
that  Fennimore  himself  assented  to,  if  he  did  not  expressly  re- 
quest, that  the  other  party  should  be  examined.  The  third  objec- 


388  NEW  JERSEY  SUPREME  COURT. 

Ford  v.  Potte. 

tion  is  likewise  negatived,  by  the  testimony  of  the  arbitrators 
themselves,  as  are  also  the  fourth  and  fifth. 

M'llvaine,  in  reply. 

KiNSEYC.J.  delivered  the  opinion  of  the  court.  Courts  of  justice 
have  long  manifested  a  strong  inclination  to  support  the  decisions 
of  arbitrators,  who  are  judges  of  the  parties'  own  choosing,  and 
have  repeatedly  declared,  that  these  voluntarily  chosen  tribunals 
are  not  to  be  held  to  the  same  strictness  in  their  proceedings,  as 
has  been  wisely  required  in  other  cases.  But,  with  this  evident 
bias,  they  never  have  carried  this  principle  to  such  an  extent,  as 
to  permit  them  to  relax  the  best  settled,  and  most  valuable  rules 
of  evidence,  and  admit  parties  to  testify  in  their  own  causes.  Tech- 
nical niceties  ought  not  to  stand  in  the  way  of  the  administration 
of  justice,  but  this  objection  is  substantial,  and  not  technical.* 

It  has,  however,  been  made  out  clearly  to  our  satisfaction,  that 
Fennimore  consented  to  the  examination  of  Childs,  and  thus 
waived  the  exception.  If  this  fact  were  even  dubious,  the  incli- 
nation of  our  minds  would  bo,  to  support  the  award  of  three 
honest,  disinterested,  and  intelligent  men,  as  these  arbitrators 
unquestionably  are,  but  wo  are  satisfied  that  they  have  acted 
properly,  and  are  unanimously  for  affirming  the  judgment. 

Judgment  affirmed. 


FORD  against  POTTS  and  others. 

IIT    ERROR. 

It  is  not  necessary  that  there  should  be  a  trial  of  a  cause,  in  order  to  entitle 
a  party  to  a  bill  of  exceptions ;  it  may  be  taken  to  the  opinion  of  the  court,  on 
the  sufficiency  of  objections  to  an  award. 

The  court  are  not  bound  to  receive  reasons  filed,  or  affidavits  taken  at  so  late 
a  period,  that  they  could  not  be  answered,  and  the  witnesses  could  not  be  cross- 
examined,  unless  reasons  for  the  delay  are  shewn. 

Under  the  act  of  December,  one  thousand  seven  hundred  and  ninety-four,  it 
ought  to  appear  upon  the  face  of  the  proceedings,  that  the  referees  were  duly 
sworn. 

The  act  does  not  make  void  every  award  of  arbitrators,  who  were  not  duly 
•worn  ;  it  may  be  waived  by  the  parties. 

It  does  not  extend  to  cases  which  had  been  referred  previously  to  its  passing. 

In  November,  one  thousand  seven  hundred  and  ninety-one, 
cross  actions  of  covenant  had  been  brought  by  the  present  par- 

*  In  Mulder  v.  Cravat,  2  Bay.  370,  the  same  objection  was  urged  against  an 
award  of  arbitrators,  bat  it  was  overruled  by  the  court. 


MAY  TEEM,  1797.  389 


Ford  v.  Potts. 


ties,  in  the  Common  Pleas  of  Sussex  county.  In  August,  1793, 
both  suits  were  referred  to  the  same  arbitrators,  whose  award,  or 
the  award  of  a  majority  of  whom,  returned  to  the  next,  or  any 
subsequent  term,  was  to  be  final  between  the  parties,  and  judg- 
ment was  agreed  to  be  entered  accordingly.  From  various 
causes,  the  arbitrators  did  not  make  their  report  until  May  term, 
1795,  which  was  dated  in  the  month  of  April,  of  the  same  year, 
and  was  regularly  read,  filed,  and  judgment  entered  accordingly. 

At  the  same  term,  a  motion  was  obtained  by  Ford,  to  shew 
cause  why  the  award  should  not  be  set  aside,  returnable  to  the 
first  day  of  the  succeeding  term ;  all  proceedings  in  the  mean 
time  to  be  stayed.  In  August,  following,  this  motion  was  dis- 
charged by  the  court,  after  argument,  and  bills  of  exception 
being  tendered  to  the  opinion  then  delivered,  were  sealed  by  the 
Court  of  Common  Pleas,  and  the  cause  removed  to  this  court. 

The  objections  taken,  and  which  were  the  foundations  of  the 
bills  of  exception,  to  the  opinion  of  the  court  below,  were — 

1.  The  court  refused  to  permit  the  defendant  below  to  read 
bis  reasons  for  setting  aside  the  award,  the  principal  of  which 
was,  that  the  arbitrators  had  not  been  qualified  pursuant  to  the 
directions  of  the  act  of  assembly,  of  December  2d,  1794.     The 
ground  upon  which  the  court  refused  to  hear  these  reasons,  was, 
that  they  were  filed  only  the  day  before  the  motion  was  to  be 
argued. 

2.  The  court  refused,  on  the  same  ground,  to  hear  affidavits 
that  had  been  taken  to  support  the  objection  to  the  award. 

3.  It  was  objected  to  the  award,  that  it  did  not  there  appear 
that  the  arbitrators  had  been  duly  qualified,  which  objection  was 
overruled  by  the  court. 

Ab.  Ogden,  for  plaintiff  in  error.  There  can  be  no  question 
as  to  the  truth  of  the  facts  upon  which  the  exceptions  to  this 
award  were  taken.  The  act  of  assembly,  of  December  2d,  1794, 
(Paterson  141-2,)  in  the  sixth  section,  requires  in  express 
terms,  "  that  every  arbitrator  shall,  before  he  proceeds  to  the 
business  submitted  to  him,  take  an  oath  or  affirmation,"  &c. 
faithfully,  and  fairly  to  hear  and  examine  the  cause,  and  to  make 
a  just  and  true  report.  Here  a  positive  duty  is  enjoined,  which 
has  been  violated ;  a  security  is  afforded  to  the  party,  of  which 
he  has  been  deprived.  The  reasons  and  affidavits  were  prepared 


390  NEW  JERSEY  SUPRKMK  COURT. 

Ford  v.  Potto. 

and  ready  for  the  court,  at  the  time  which  had  been  appointed, 
and  if  the  opposite  party  found  themselves  unprepared,  or  taken 
by  surprise,  they  should  have  appled  for  a  postponement.  No 
injury  could  have  resulted  from  such  a  course,  and  no  delay 
would  have  been  permitted,  had  none  been  necessary. 

Independent,  however,  of  any  difficulties  arising  from  an 
alleged  want  of  time,  it  is  contended,  that  sufficient  appears  on 
the  face  of  the  proceedings  themselves,  to  have  authorized  tho 
court  to  set  aside  the  award.  Objections  appearing  in  tho  record 
itself,  or  in  the  report,  may  be  taken  advantage  of  at  any  time. 
The  exception  which  we  thus  consider  fatal,  is,  that  it  no  where 
appears  that  the  referees  were  sworn.  Inferior  tribunals  are 
always  obliged  to  shew  the  regularity  of  their  proceedings,  and 
as  the  law  has  imposed  upon  them,  as  a  pre-requisite  to  their 
acting,  that  they  should  take  a  certain  form  of  oath  or  affirma- 
tion before  their  acts  can  be  recognized  as  valid,  it  must  appear 
that  they  have  pursued  the  directions  of  the  law. 

With  regard  to  the  objection  which  has  been  intimated,  that  a 
bill  of  exceptions  will  not  lie  in  a  case  of  this  description,  it  may  be 
observed,  that  there  is  no  foundation  for  the  principle  upon  which 
it  rests,  that  bills  of  exception  can  only  be  taken  at  a  trial.  Buller 
315.  This  proceeding  is  founded  upon  the  statute  of  Westminster 
2, 13  Edw.  1  c.  31,  and  the  language  used  in  the  statute  is  perfectly 
explicit  and  unambiguous.  "When  one  that  is  impleaded  before 
any  of  the  justices,"  &c.  Occasions  most  generally  present  them- 
selves at  trials,  and  accordingly  most  of  the  cases  referred  to  are 
of  that  nature.  They  should  be  encouraged  and  admitted  when- 
ever an  inferior  jurisdiction  hastrepassed  upon  the  limits  assigned 
to  it,  or  indulged  in  any  illegal  and  arbitrary  proceedings. 

R.  Stockton,  on  the  same  side. 

A.  Ogden,  contra.  The  bills  of  exception  constitute  no  part 
of  the  record.  The  statute  of  Westminster  has  never  been  held 
to  extend  to  collateral  motions  for  new  trials.  Bills  of  exception 
are  spoken  of  in  all  the  books,  as  taken  only  at  trials ;  (2  Tidd's 
Prac.  786)  and  as  they  servo  for  the  foundations  of  writs  of 
error,  they  never  lied  unless  when  a  writ  of  error  may  be 
brought.  If  they  were  to  bo  taken  to  every  collateral  opinion 
that  might  be  dropped  by  a  judge,- in  tho  various  stages  of  a 


MAY  TERM,  1797.  391 

Ford  v.  Potts. 

cause,  and  in  the  incidental  proceedings  of  inferior  tribunals, 
questions  for  litigation  would  be  for  ever  occurring,  and  dis- 
putes would  never  be  terminated. 

As  to  the  errors  complained  of:  the  court  had  a  right  to  order 
the  argument  on,  and  then  every  objection  was  proper.  Nothing 
appeal's  to  shew  that  we  had  any  notice  of  the  fact,  until  the 
moment  of  argument. 

It  is  objected,  that  it  does  not  appear  the  referees  were  sworn. 
It  is  not  necessary  that  it  should  so  appear.  The  parties  appeared 
before  the  referees,  and  thereby  acknowledged  their  authority 
so  far,  as  to  be  estopped  from  questioning  their  jurisdiction. 
Andrews  v.  Linton,  2  Lord  Ray.  884.  The  reasoning  of  Lord 
Holt,  is  peifectly  applicable  to  the  present  case.  The  compldint 
should  be  made  during  the  term  of  the  irregularity,  and  after 
the  term,  all  persons  are  precluded  from  saying  the  person  was 
not  sheriif.  The  objection  to  the  arbitrators,  on  account  of  their 
not  being  sworn,  should  have  been  taken  at  an  earlier  period 
than  the  second  term,  and  it  has  been  waived  by  the  delay. 

On  another  ground,  this  objection  avails  nothing  against  the 
award  in  this  case.  Whenever  matter  of  error  is  apparent  on  the 
record,  it  may  be  taken  advantage  of  at  any  time;  but  when  the 
error  is  latent,  it  must  be  objected  to  at  the  time;  it  must  be 
challenged,  or  the  exception  is  waived.  Vin.  Abr.  title  Error, 
474,  pi.  3 ;  530,  pi.  22.  It  is  not  assignable  for  error,  that  he 
who  returned  a  writ  was  not  sheriif. 

Further,  it  appears  by  the  record,  that  the  cause  was  referred 
before  the  passing  of  the  act  requiring  referees  to  be  sworn,  and 
the  words  of  the  act  direct  them  to  be  sworn  before  they  proceed. 
Nothing  appears  to  shew  that  they  had  not  commenced  the  inves- 
tigation of  the  business  before  the  law  was  made,  and,  in  order  to 
support  a  judgment  and  an  award,  such  a  presumption  is  fair. 

Stockton,  in  reply. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  (After  stat- 
ing the  case.)  It  is  contended,  on  the  part  of  the  plaintiff,  that  a 
bill  of  exceptions  would  not  lie  in  a  case  of  this  kind.  This  ob- 
jection we  consider  as  entitled  to  little  weight.  The  design  of  the 
statute  was  to  provide  a  mode  for  examining  errors  which  could 
not  properly  be  inserted  in  the  record,  and  allows  an  exception 


392  NEW  JERSEY  SUPREME  COURT. 

Ford  v.  Potts. 

wherever  a  party  is  impleaded,  that  is,  sued  or  prosecuted;  and 
I  see  no  reason  for  restricting  it  to  trials.  I  recollect  a  case  where 
a  challenge  to  the  array  was  made,  and,  being  overruled,  a  bill 
.of  exceptions  was  taken,  and  the  question  carried  before  the 
governor  and  council,  by  whom  it  was  determined ;  and  the  right 
to  except  was  never  questioned. 

If  the  proceedings  of  the  inferior  court  were  illegal,  and  vio- 
lated the  rights  of  the  party,  this  court  would,  in  some  form  or 
another,  come  at  the  error,  and  see  that  justice  was  done.  Mease 
v.  Mease,  Cowp.  47. 

After  removing  this  preliminary  difficulty,  we  come  to  the 
error  complained  of.  It  is  contended,  that  the  court  below  ought 
not  to  have  rejected  the  affidavits  and  reasons,  because  the 
witness  being  present  might  have  been  cross-examined,  and 
because,  had  the  opposite  party  complained  of  surprise,  further 
time  might  have  been  allowed,  which  was  the  usual  practice  of 
the  court.  The  circumstances  of  the  case  which  has  been  re- 
ferred to  as  establishing  a  precedent,  and  authorizing  this  prac- 
tice, are  not  precisely  known;  but  we  think  that  every  court 
possesses  the  right  of  rejecting  affidavits,  when  offered  at  so  late 
a  period  as  not  to  allow  a  full  hearing,  when  they  perceive  that 
the  receiving  them  will  be  productive  of  delay,  and  that  delay 
is  attempted  by  the  party  thus  guilty  of  laches;  and  when,  as 
in  the  present  case,  the  time  for  hearing  the  argument  was  fixed 
by  the  party  who  has  delayed  taking  the  affidavits  at  a  period 
sufficiently  early  to  admit  of  disproving  the  facts.  The  delay 
was  altogether  unnecessary  and  unaccounted  for,  and  not  to  be 
encouraged.  We  cannot  therefore  say,  that  the  justices  below 
were  wrong  in  rejecting  this  attempt  to  create  delay. 

But  however  this  may  be,  if  the  facts  serving  as  the  founda 
tion  for  the  exceptions  to  the  award  are  insufficient  to  vitiate  it, 
the  judgment  ought  to  bo  affirmed,  although  the  court  erred  in 
refusing  to  hear  the  affidavits  and  reasons. 

There  seems  some  weight  in  the  observation,  that  if  the  sixth 
section  of  the  act  of  1794  applied  to  this  case,  and  the  referees 
should  have  been  sworn  before  they  proceeded  to  business,  this 
fact  ought,  in  some  manner  or  another,  to  have  been  made  to 
appear  on  the  face  of  the  proceedings  themselves.  The  case  of  a 
jury  is  perfectly  analogous:  a  jury  is  summoned  to  try  facts  be- 
fore the  court;  the  universal  practice  is  to  state,  on  the  record, 


MAY  TERM.  1797.  393 


Ford  v.  Potts  et  al. 


that  they  were  previously  and  regularly  sworn,  and  a  failure  to 
state  this  would  be  error.  I  cannot  distinguish,  in  principle,  be- 
tween the  two  cases.  If  it  is  not  necessary  that  the  fact  should 
appear,  the  statute  may  become  altogether  inoperative. 

The  case  from  Raymond  is  inapplicable.  This  is  a  special  ju- 
risdiction, created  for  a  particular  purpose,  and  the  regularity  of 
the  whole  proceeding  must  be  shewn.  I  do  not  think  that  the 
single  circumstance  of  appearing  before  an  arbitrator  and  de- 
fending a  suit,  would  estop  a  party  from  questioning  his  autho- 
rity. Want  of  jurisdiction  may  be  taken  advantage  of  at  any  time. 

The  next  question  to  be  considered  is,  whether  the  act  of 
1794  applies  to  the  arbitrators  in  this  suit?  It  is  important  here 
to  attend  with  some  exactness  to  dates.  The  reference  was  en- 
tered into  in  August  1793;  the  act  of  assembly  requiring  arbitra- 
tors to  be  qualified,  was  passed  in  1794;  the  award,  dated  April, 
1795,  was  filed  in  May,  1795. 

This  act  is  almost  a  transcript  of  the  9  and  10  Will.  III.  c. 
15.  With  the  exception  of  the  sixth  section,  the  parts  which  re- 
late to  references,  it  is  chiefly  confined  to  cases  where  no  suit  is 
actually  depending,  and  seems  intended  to  put  such  disputes  on 
the  same  footing  as  if  there  had  been  a  suit  commenced.  Where 
there  is  a  suit  depending,  a  reference  depends  on  the  common 
law ;  it  is  not  affected  by  the  statute.  Lucas  v.  Wilson,  2  Bur. 
701. 

The  words  of  the  sixth  section  are  more  general,  and  do  not 
seem  restricted  to  any  particular  references.  It  directs,  that  in 
cases  of  arbitration,  every  arbitrator,  "  before  he  proceeds,  &c. 
shall  take  an  oath  or  affirmation,"  &c.  These  words,  however, 
according  to  their  usual  acceptation,  would  seem  to  impose  a 
duty  rather  on  the  arbitrator  than  on  the  party.  If  the  direction 
is  not  complied  with,  the  law  subjects  him  to  no  penaltj-;  it  does 
not  invalidate  the  proceedings,  or  empower  any  court  to  set  them 
aside.  The  qualification  appears  to  me  to  be  required  for  the 
security  of  the  parties.  If  they  knowingly  go  to  a  hearing  before 
the  arbitrators,  and  either  neglect  or  omit  to  avail  themselves  of 
the  security  oifered  by  the  legislature,  it  would  be  unjust  that 
they  should  be  permitted  to  hold  up  the  award  as  void.  It  is  a 
principle  quilibet  potest  renunciare  jus  pro  se  introducto.  Many 
cases  might  be  imagined,  in  which  it  would  be  in  the  highest 
degree  unjust  to  declare  the  award  void.  If  one  of  the  parties 


394  NEW  JERSEY  SUPREME  COURT. 

Edwards  v.  Davis. 

were  to  suffer  the  arbitrators  to  proceed  without  being  sworn, 
•with  the  intention  of  availing  himself  of  the  defect,  I  should  com- 
pare it  to  the  case  of  Gil/man  v.  Hill,  Cotcp.  141,  where  one 
knowingly  executed  a  warrant  of  attorney  in  custody,  with  the 
design  of  availing  himself  of  the  circumstance,  the  court  refused 
to  set  it  aside. 

The  legislature  have  not  declared,  that  the  omission  to  take 
the  oath  should  invalidate  the  award,  and  we  cannot  suppose 
that  this  was  their  meaning.  If  such  was  their  intention,  it  might 
easily  have  been  expressed,  but  as  it  is  omitted,  we  can  only 
judge  of  their  intentions  by  what  they  have  done. 

We  are  also  of  opinion,  that  the  act  does  not  extend  to  cases 
which  had  been  referred  previously  to  its  passing.  The  design 
of  the  legislature  was  to  provide  a  rule  for  future  cases.  A  parol 
proniido,  made  before  the  statute  of  frauds,  to  be  performed  af- 
terwards, is  not  within  it,  though  the  statute  says,  no  suit  shall 
be  brought,  after  a  certain  day,  on  a  parol  promise,  and  the  suit 
was  brought  after  that  day.  2  L'ev.  227. 

Judgment  affirmed. 

CITED  IK  Inslee  v.  Flagg,  2  Dutch.  368 


EDWARDS  againtt  DAVIS. 

IN   ERROR. 

Unliquidated  damages  cannot  be  set  off,  although  they  might  he  recovered 
in  indeoitatui  atsumsit. 

The  circumstances  of  the  case  are  fully  stated  in  the  opinion 
of  the  Chief  Justice. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  This  is  the 
first  attempt  that  I  have  met  with  to  offset  a  tort ;  and  so  palpa- 
bly improper  and  illegal  was  the  admission  of  the  evidence,  that 
it  is  scarcely  requisite  to  state  the  grounds  which  have  induced 
us  to  reverse  the  judgment  of  the  court  below. 

It  appears  that  Edwards  brought  assumsit  on  an  insimul  com- 
putassent,  for  goods  sold  and  delivered,  &c.  The  defendant 
pleaded  paj'ment,  and,  under  this  plea,  offered  to  set  off  the 
value  of  a  horse,  which  was  in  the  possession  of  the  plaintiff,  and 
had  never  been  returned.  The  evidence  by  which  this  defence 
was  supported,  went  to  shew  that  the  carter  in  the  plaintiff's  ser- 


MAY  TERM,  1797.  395 


Edwards  v.  Davis. 


vice  gave  the  horse  in  question  a  stroke  with  a  whip,  in  conse- 
quence of  which  he  jumped  into  a  mill-pond  and  was  drowned. 

It  is  contended,  that  this  evidence  was  properly  admitted, 
because  the  value  of  the  horse  might  have  been  recovered  in  an 
action  of  indebitatus  assumsit.  . 

It  is  not  alleged  or  pretended,  that  there  was  anything  like  a 
sale  of  the  horse.  It  is  therefore,  in  my  opinion,  clearly  a  tort, 
and  not  the  subject  of  a  set-off. 

The  case  of  Hambly  v.  Trott,  which  has  been  cited,  does  not 
contradict  this  doctrine.  From  the  language  of  the  court  in  that 
case,  it  may  be  inferred,  that  assumsit  might  be  brought  against 
an  executor  to  recover  the  value  of  trees  which  had  been  tor- 
tiously  cut  down  by  testator:  but  this  is  to  prevent  a  failure  of 
justice,  and  because  trespass  would  not  lie.  It  is  no  conclusion, 
however,  from  this,  that  damages  for  an  act  of  this  kind  could 
be  the  subject  of  a  set-off.  Nothing  can  be  set-off  for  which 
indebitatus  assumsit  would  not  lie,  but  the  converse  of  the  rule  is 
not  equally  true.  The  act  of  assembly  speaks  of  persons  "  in- 
debted to  each  other  by  bonds  or  the  like,"  &c.  The  case  of 
Hewlett  v.  Strickland,  Cowp.  57,  proves  that  unliquidated  dam- 
ages cannot  be  set-off.  The  judgment  of  the  court  below  must 
be  reversed. 

Judgment  reversed. 

CITED  IN  Cooper  v.  Crane,  4  Hal.  180. 


396  NEW  JERSEY  SUPBEM3  COUKT. 


Si.«t<j  v. 


[SEI-TEMBER  TERM,  1797.] 
THE  STATE  againtt  COVENHCVEr . 

09   CERTIORARI. 

To  an  inquisition  of  forcible  entry  and  detainer,  the  defendant,  protes  .ing  th 
insufficiency  of  the  charge,  and  that  the  prosecutor  had  not  been  ai  any  time 
within  three  years  before  inquisition,  found  in  possession  o*  the  premises, 
pleaded — 1.  As  to  the  force  and  arms,  not  guilty.  2.  That  those  under  whom 
he  held  had  been  in  possession  for  eight  years  next  before,  Ac.  without  this,  that 
defendant,  on  the  day  and  year  alleged,  entered,  disseized,  Ac.  Held  this  plea 
ia  bad  on  demurrer. 

Defendant  may  avail  himself,  in  his  defence,  of  his  three  years'  possession, 
and  may  put  in  issue  the  forcible  entry,  Ac.  but  one  should  be  pleaded  under  a 
protcstando,  otherwise  the  plea  will  be  bad  for  duplicity. 

Possession  is  not  a  plea  in  bar  to  the  inquisition,  but  it  is  a  good  plea  to  pre- 
vent restitution. 

The  right  to  restitution  is  a  civil  right,  and  when  a  plea  is  pleaded  in  bar  of 
the  restitution,  the  prosecutor  may  reply  in  his  own  name. 

Plea,  that  those  under  whom  defendant  holds  have  been  in  possession  three 
years  next  before,  Ac.  bad. 

Plea  of  possession  for  eight  years  before,  Ac.  is  bad  ;  it  puts  in  issue  an  im- 
material fact. 

Whether  a  defective  plea  to  an  inquisition  of  forcible  entry  and  detainer  may 
be  amended  ?  Query. 

This  was  an  inquisition  of  forcible  entry  and  detainer,  found 
before  Justice  Combs,  of  Middlesex  county. 

The  inquisition  charged,  that  Samuel  Vantine  was  lawfully 
and  peaceably  seized  and  in  possession  of  the  premises,  in  the 
township  of  South-Brunswick,  in  the  county  of  Middlesex,  and 
his  seizin  and  possession  continued  until  April  1,  1793,  when 
William  Covenhoven,  with  strong  hand,  &c.  entered,  expelled, 
disseized,  and  keeps  out,  &c. 

The  defendant  comes  in  his  own  proper  person,  and  defends, 
&o,  protesting,  that  the  inquisition  is  insufficient,  and  protesting, 
that  neither  the  said  Samuel  Vantine,  nor  any  under  him,  has 
been  in  possession  of  the  premises  at  any  time  within  three 
years  next  before,  &c.  nevertheless  pleads — 1.  As  to  the  coming 
with  force  and  arms,  &c.  not  guilty.  2.  As  to  the  residue  of  the 
entry,  that  from  —  till  —  (being  a  period  of  eight  years)  those 
under  whom  defendant  claims,  had  been  in  quiet  possession  an(J. 
seizin  of  the  premises:  without  this,  that  the  said  William  Coven- 
hoven, at  the  time  charged,  did  enter  with  force  and  arms,  and 
disseize  and  expel,  &c.  and  this  he  is  ready  to  verify:  wherefore 
he  prays  judgment,  &c. 


SEPTEMBER  TERM,  1797.  397 

State  v.  Covenhoven. 

To  this  plea  the  state  demurred  specially,  and  assigned  for 
causes  of  demurrer,  that  it  was  insufficient,  double,  insensible,  and 
argumentative,  and  that  the  traverse  was  immaterial,  and  that 
no  proper  issue  could  thereon  be  taken. 

The  defendant  joined  in  demurrer. 

The  cause  was  argued  in  May  term,  1797. 

It.  Stockton,  in  support  of  the  demurrer.  In  general  it  may  be 
stated,  that  the  only  pleas  which  go  to  the  merits  in  this  species 
of  proceeding,  are,  not  guilty,  and  three  years'  possession.  An 
inquisition  of  forcible  entry  and  detainer  is,  in  effect,  an  indict- 
ment, and  consequently  the  law  of  special  pleading  does  not  apply. 

Every  circumstance  which  amounts  to  a  justification,  or  to  a 
complete  bar,  may  be  given  in  evidence  under  the  general  issue, 
except  the  three  years'  possession  ;  the  reason  of  which  is,  that  the 
three  years'  possession  is  contained  in  a  proviso  of  the  statute.  13 
Vin.  Abr.  386,  pi.  6,  states  the  general  rule  as  to  pleading  provisos. 

For  the  same  reason,  this  being  in  the  nature  of  an  indict- 
ment, the  statute  of  Anne,  authorizing  double  pleading,  is  not 
applicable.  The  defendant,  therefore,  cannot  join  the  plea  of  not 
guilty,  and  three  years'  possession.  This  privilege  is  considered 
as  not  applying  to  any  action  on  a  penal  statute;  {Barnes  15,  365) 
nor  to  qui  tarn  actions ;  (2  Wils.  21)  nor  to  suits  where  the  king 
is  a  party.  Barnes  353,  Wils.  533.  4  Bac.  Ab.  449  If  double 
pleading  is  allowed,  leave  of  the  court  must  appear  on  the  record, 
or  it  is  bad. 

"With  regard  however,  to  the  particular  defects  in  this  plea,  it 
is  bad,  both  in  substance  and  in  form;  whether  considered  as  a 
plea  of  the  general  issue,  or  three  years'  possession,  or  both. 

1.  It  is  bad  if  considered  as  the  general  issue,  because  it  con- 
tains no  answer  to  the  inquisition.     It  denies  only  the  coming 
with  force  and  arms,  and  is  wholly  silent  with  regard  to  the 
entry  and  disseizin.     The  plea  of  not  guilty,  must  go  to  the  whole 
force.     2  Lill.  439,  441.     The  plea  must  be  an  answer  to  the 
plaintiff's  allegations,  and  be  capable  of  trial.     3  BL  Com.  308. 
Nor  does  the  traverse  at  the  end  of  the  plea  help  this  defect; 
for  such  a  traverse,  concluding  with  a  verification  is  a  departure 
from  the  general  issue,  and  is  only  used  in  a  special  plea. 

2.  As  a  plea  of  three  years'  possession,  it  is  defective  both  in 
form  and  substance. 


398  NEW  JERSEY  SUPREME  COURT. 

State  v.  Covenhoven. 

1.  The  plea  should  have  contained  a  simple  and  single  affirma- 
tion, that  the  defendant  had  been  in  possession  three  years  next 
before   inquisition  found,  on  which  an  issue  might  have  been 
taken.     In  this  manner  the  whole  controversy  would  have  been 
reduced  to  a  single  point,  and  all  the  rest  of  the  case  admitted. 
This  plea,  however,  is  an  attempt  to  plead  double,  and  to  take 
advantage  of  both  defences.     It  is  not  a  single  plea  of  possession, 
but  it  traverses  the  forcible  entry.    In  every  case  the  plea  ought 
to  be  single,  and  duplicity  is  a  good  cause  of  demurrer.     3  Bl. 
Com.  308.     2  Swift's  Sys.  224.     More  especially  ought  an  adher- 
ence to  this  rule  to  be  required,  when  the  defendant  endeavours 
to  avail  himself  of  two  distinct  grounds  of  defence,  one  of  which 
amounts  to  the  general  issue,  and  goes  in  bar  of  the  whole  pros- 
ecution ;  the  other  is  allowed  by  the  statute  to  be  pleaded  in 
bar  of  restitution  only.     1  Hawk.  P.  C.  277-8. 

In  what  manner  can  the  state  reply  to  this  plea.  There  are 
obviously  two  issues  tendered,  one  on  the  forcible  entry,  the  other 
on  the  possession.  The  replication,  therefore,  must  answer  these 
two  facts,  or  it  will  not  go  to  the  whole  plea. 

2.  The  plea  is  defective  in  this  respect  also,  that  it  alleges  the 
possession  to  have  been  in  those  under  whom  defendant  claims. 
This  is  no  plea  to  the  action,  or  in  bar  of  restitution.   The  statute 
31  Eliz.  c.  11,  explaining  and  enforcing  the  proviso  in  the  statute 
of  8  Hen.  VI.  c.  9,  confines  this  defence  to  the  person  indicted, 
who  has  himself  had  the  occupation,  or  been  in  quiet  possession 
"three  whole  years  together,  next  before  the  day  of  such  indict- 
ment."    The  King  v.  Surges,  Sir  T.  Ray.  84. 

3.  Another  objection  to  the  plea,  considered  in  this  point  of 
view,  is,  that  it  is  in  fact  a  plea  of  eight  years'  possession,  and 
not  of  three,  within  the  words  of  the  statute.     This  is  a  special 
defence  allowed  by  statute,  and  it  should  bo  pleaded  in  the  pre- 
cise words  employed  by  the  legislature. 

The  statute  does  not  prescribe  tho  manner  in  which  this  sav- 
ing is  to  be  pleaded,  but  it  should  be  so  pleaded,  that  the  state 
can  take  issue  upon  the  fact,  and  have  it  tried  rightly.  It  must  bo 
so  pleaded  as  to  bo  capable  of  trial.  3  Bl.  Com.  308.  What  replica- 
tion could  tho  state  put  in  to  this  plea?  that  the  defendant 
was  not  in  possession  eight  years  as  alleged,  which  would  bo  an 
immaterial  issue,  or  that  he  was  not  in  possession  three  years, 
which  was  not  alleged  in  the  plea.  In  Blackmore  v.  Tidderly, 


SEPTEMBER  TERM,  1797.  399 

State  v.  Covenhoven. 

2  Ld.  Ray,  1099,  which  was  an  action  of  false  imprisonment,  the 
defendant  pleaded  not  guilty  infra  sex  annos,  and  upon  demurrer 
the  plea  was  held  ill.  The  language  of  Powell  J.  is  perfectly 
applicable  to  this  case.  "The  plea  at  best  is  but  argumentative, 
and  such  pleas  are  never  good,  especially  where  the  matter  that 
makes  the  bar  is  made  such  by  an  act  of  parliament,  you  ought 
to  plead  it  in  the  words  of  the  statute."  2  Swift's  Syst.  222-3. 
SI  Com.  395. 

Leake  and  Woodruff,  contra.  The  first  objection  to  this  plea, 
is,  that  it  is  double:  this  is  one  reason  assigned  in  the  demurrer. 
The  inquisition  charges  a  forcible  entry  and  detainer:  the  defend- 
ant pleads  not  guilty  to  the  coming  with  force,  &c.  that  is,  not 
guilty  of  entering  against  the  peace  of  the  state.  Then  follows 
the  allegation  of  a  fact,  which  if  true,  entitled  defendant  to  enter 
in  a  peaceable  manner.  The  first,  therefore,  is  not  a  distinct 
defence,  but  a  part  of  an  entire  defence,  of  which  the  second 
was  the  residue.  A  double  plea  contains  two  or  more  answers 
to  the  whole  charge ;  this  plea  states  two  distinct  parts,  making 
one  answer  to  the  whole  charge. 

It  is  clear  that  the  defendant  may  traverse  the  forcible  entry, 
which  is  the  foundation  of  the  proceedings;  and  under  the  stat- 
ute of  Elizabeth,  he  may  likewise  plead  three  years'  possession. 
Here  is  a  charge  embracing  two  distinct  facts,  a  forcible  entry, 
and  a  forcible  detainer.  2  Burns'  Just  259.  The  second  is 
covered  by  the  justification  under  the  statute,  of  necessity 
therefore,  the  first  must  be  traversed.  Upon  the  principles  con- 
tended for,  the  defendant  could  never  avail  himself  of  the  three 
years'  possession ;  for  this  plea  justifies  the  detainer  only,  and  ia 
no  bar  to  the  forcible  entry. 

It  is  said,  that  the  first  part  of  the  plea  does  not  deny  the  forci- 
ble entry,  it  only  controverts  the  coming  with  force,  &c.  It  is 
agreed,  that  if  the  entry  with  force  was  not  denied,  it  is  bad  ; 
but  this  is  clearly  done  in  the  coming,  &c.  It  merely  excludes 
the  detaining  with  force,  which  a  man  may  lawfully  do  after 
three  years'  possession,  (2  Burns1  Just.  257)  and  the  latter  part 
of  the  plea  brought  the  defendant's  case  within  this  justification. 

It  is  further  said,  the  traverse  at  the  conclusion  of  the  plea, 
does  not  help  the  defects  of  the  general  issue,  that  is,  does  not 
enlarge  the  denial.  The  issue  ought  to  be  taken  on  the  traverse. 


400  NEW  JERSEY  SUPREME  COURT. 

State  v.  Covenhoven. 

The  traverse  goes  expressly  to  the  forcible  entry,  and  issue 
should  have  been  joined  upon  that  fact,  which  would  have 
brought  the  controversy  to  a  single  point. 

With  still  less  appearance  of  reason,  it  is  contended,  that  the 
defendant  should  have  alleged  his  own  continued  possession  for 
three  years,  and  that  he  cannot  justify  under  the  possession  of 
those  from  whom  his  title  is  derived.  There  is  nothing  in  the 
statute  which  makes  this  defence  a  personal  one,  and  it  is  con- 
trary to  reason  and  to  common  sense,  that  it  should  be  so  con- 
sidered :  it  would  expose  tenants  and  labourers  to  many  and 
serious  inconveniences,  and  no  possible  good  can  result  from 
such  a  construction  of  the  law.  The  case  in  Sir  Thomas  Ray- 
mond, is  extremely  ambiguous,  and  never  has  been  before  consid- 
ered as  warranting  such  a  doctrine.  The  judgment  was  not 
because  the  defendants  justified  under  the  possession  of  another, 
but  because  it  was  not  pleaded,  that  they  were  in  possession 
"three  whole  years  next  before  inquisition  found." 

The  objection  founded  upon  the  circumstance  of  the  plea,  alleg- 
ing a  possession  of  eight  years,  instead  of  one  of  three,  is,  how- 
ever, the  most  extraordinary.  It  is,  however,  a  mere  quibble. 

The  plea  states  a  possession  from till  the  day  of  taking  the 

inquisition,  and  if  the  term  of  eight  years  is  erroneous,  it  may 
be  rejected  as  surplusage,  being  contained  under  a  videlicet.  It 
is  necessary  for  the  defendant,  in  order  to  prevent  restitution, 
that  a  three  years'  possession  should  appear  upon  the  record  ; 
but  it  is  not  requisite  that  the  words  three  years  should  be  inserted. 
The  pleading  a  possession  of  eight  years  ought  not  to  vitiate  the 
plea,  because  more  than  the  statute  requires  is  stated.  The  argu- 
ment employed  in  the  case  in  Raymond,  is  inapplicable,  because 
the  action  was  good  at  common  law,  and  the  defendant  was 
bound  to  bring  himself  within  the  statute ;  here  the  proceeding 
is  founded  wholly  upon  the  statute,  and  the  same  strictness  is 
not  requisite  to  bring  the  case  within  the  saving  clause.  The 
only  question  upon  this  part  of  the  case  really  is,  whether  the 

court  can  judicially  take  notice  that  a  possession  from till 

the  day  of  taking  this  inquisition,  which  actually  includes  a 
period  of  eight  years,  is  a  possession  for  three  years? 

Again,  the  demurrer  ought  not  only  to  have  stated,  in  general 
terms,  that  the  plea  was  double,  argumentative,  &c.  but  it  should 
have  stated  positively  where  and  how  it  was  so.  This  has  not 


SEPTEMBER  TERM,  1797.  401 

State  v.  Covenhoven. 

been  done,  and  these  objections  cannot  now  be  urged.     5  Bac. 
Abr.  461. 

Stockton,  in  reply. 
Curia  vult  advisare. 

KINSKY  C.  J.  delivered  the  opinion  of  the  court.  This  inqui- 
sition appears  to  have  been  taken  on  the  26th  of  May,  1794, 
and  charges,  that  Samuel  Vantine  was  seized  in  fee  and  peace- 
ably possessed  of  a  messuage,  and  continued  so  seized  until  the 
1st  of  April,  1793,  when  William  Covenhoven,  with  a  strong 
hand,  &c.  To  this  the  defendant  pleads,  (as  before  stated)  to 
which  plea  a  special  demurrer  has  been  filed,  stating,  as  causes 
of  demurrer,  that  it  contains  no  answer  to  the  inquisition;  that 
it  is  double,  insensible,  and  argumentative;  that  the  traverse  is 
immaterial;  and  that  no  proper  issue  can  be  joined  thereon.  The 
defendant  has  joined  in  demurrer,  and  the  question  is,  as  to  the 
goodness  and  sufficiency  of  the  plea. 

Before  we  come  directly  to  the  consideration  of  the  principal 
question,  it  may  be  proper  to  remark,  that  the  statutes  against 
forcible  entry,  aggregately  considered,  have  several  objects  in 
view;  to  preserve  the  public  peace,  by  preventing  these  private 
outrages,  and  to  give  a  speedy  remedy  to  the  person  whose  in- 
dividual rights  have  been  violated,  and  in  whose  person  the  gen- 
eral peace  had  been  infringed.  There  can  be  no  doubt,  there- 
fore, we  think,  that  the  forcible  entry  may  be  denied,  and  the 
defendant  may,  at  the  same  time,  avail  himself  of  his  three 
years'  qniet  possession.  The  one  puts  in  issue  the  fact  denied, 
the  other  precludes  the  necessity  for  any  investigation  into  it. 
Both  defences  may  therefore  be  embraced  within  one  plea,  but 
it  seems  that  one  of  them,  to  prevent  a  charge  of  duplicity,  should 
be  done  by  way  of  protestando,  as  in  the  case  of  Rex  v.  Edwards, 
1  Tremaine's  Pleas  192. 

Another  observation  may  here  be  made,  in  answer  to  what  was 
dropped  by  one  of  the  counsel,  on  the  argument.  It  was  said, 
that  on  a  special  demurrer,  no  objection  can  be  taken  which  is 
not  particularly  specified  in  the  demurrer,  and,  therefore,  that 
the  prosecution  is  precluded  from  urging  some  of  the  objections 
which  have  been  made.  The  observation,  so  far  as  it  relates  to 
formal  defects,  is  correct,  and  warranted  by  the  statute,  but  de- 
fects of  substance  may  be  taken  advantage  of  at  any  time. 

VOL.  i.  2  A 


402  NEW  JERSEY  SUP11EME  COURT. 

State  v.  Covenhoven. 

With  regard  to  the  principal  question  before  us,  much  light 
may  be  obtained  from  the  case  before  cited,  of  Rex  v.  Edwards. 
The  inquisition  was  found  the  15th  of  March,  1648,  and  charged, 
that  "Robert  Edwards  and  Catharine  his  wife,  on  the  10th  of 
February,  1644,  with  force,"  &c.  The  defendants  pleaded,  by 
way  of  protestation,  that  they  did  not  enter;  and  then,  to  pre- 
vent restitution,  that  one  William  Rogers,  on  the  10th  of  August, 
1632,  being  seized  in  fee,  leased  the  premises  to  the  defendant 
and  his  assigns  for  ninety-nine  years  if,  &c.  under  which  lease 
defendant  entered  on  the  same  day,  and  was  possessed  thereof, 
for  three  years  together  next  before  the  indictment  found,  &c. 
To  this  plea  a  replication  is  filed  by  the  prosecutors,  in  their 
own  names,  who,  by  protestation,  deny  the  seizin  and  lease,  &c. 
and  issue  is  joined  on  the  possession  of  defendant. 

Upon  this  case  it  may  be  observed,  that  possession  is  pleaded, 
not  directly  to  the  inquisition,  but  to  bar  restitution,  and  to  this 
effect  only  is  it  available.  In  the  case  before  the  court,  it  is 
pleaded  in  bar  of  the  action ;  it  is  held  up  as  an  answer  to  the 
indictment,  to  which,  properly  speaking,  it  is  no  plea. 

Another  thing  is  to  be  remarked  in  that  case,  which  is,  that 
the  restriction  seems  a  mere  civil  right,  and  the  crown  did  not 
reply  to  the  plea  in  bar  of  it.  This  belongs  to  the  party  injured, 
who  may  make  himself  at  once  a  party  to  the  record,  and  file 
the  replication  in  his  own  name.  This  confirms,  if  confirmation 
is  necessary,  the  idea  that  it  is  no  bar  to  the  inquisition. 

Two  of  the  cases  which  have  been  cited  in  support  of  the  de- 
murrer, appear  to  me  conclusive  against  the  plea.  In  The  King 
v.  Burgess,  the  defendant  pleaded,  that  I.  S.  was  tenant  for  life; 
that  he  was  in  possession  three  years  before  the  indictment 
found;  and  that  the  defendants,  as  his  servants,  entered.  On 
demurrer  to  this  plea,  it  was  held  ill,  because  it  was  not  alleged 
that  the  defendants  were  in  possession  for  three  years.  (See 
King  v.  Harris,  1  Salk.  260.  4  Com.  Dig.  212.) 

In  thijj  case  it  is  pleaded,  that  the  Sneidekers,  by  their  agents, 
one  of  whom  the  defendant  is,  had  the  possession  for  eight  years, 
which  may  be  true,  though  he  had  been  in  possession  but  a  sin- 
gle hour,  and  this  is  pleaded  in  bar  of  the  inquisition,  and  not 
merely  to  prevent  restitution.  We  consider  the  case  that  has 
been  cited  as  establishing  the  principle,  that  a  servant  cannot 
.avail  himself  of  the  three  years'  possession  of  the  master.  The 


SEPTEMBER  TERM,  1797.  403 

State  v.  Covenhoven. 

statute  gives  the  person  thus  possessed,  the  right  of  availing 
himself  of  it,  but  gives  it  to  no  other  person.  We  consider, 
therefore,  that  the  fact  alleged  in  this  plea,  of  a  possession  in 
the  Sneidekers,  is  altogether  foreign  to  the  issue  between  these 
parties,  and  perfectly  immaterial  on  the  present  question. 

Should  there,  however,  exist  any  doubts  upon  this  point,  there 
is  another  objection  to  this  plea,  furnished  by  the  case  in  Lord 
Raymond,  which  is  decisive  of  the  question :  I  allude  to  the  plea 
of  a  possession  for  eight  years,  instead  of  three,  which  is  pointed 
out  by  the  statute.  When  the  point  was  first  broached,  my  mind 
had  a  different  inclination :  I  thought,  as  it  appears  from  the  case 
referred  to,  that  Raymond  argued,  and  the  court  thought  on  the 
first  argument,  that  the  largeness  of  the  plea,  and  the  time,  was 
for  the  benefit  of  the  plaintiff,  as  appears  in  6  Mod.  240.  On 
consideration,  however,  I  have  seen  reason  to  alter  my  mind,  as 
the  court,  in  that  case,  appears  to  have  done ;  and  I  agree  with 
them,  that  such  a  plea  holds  up  an  immaterial  issue,  and  that 
the  prosecutor  could  not  file  a  proper  replication  to  it.  As  the 
court  ai-e  reported  (2  Salk.  423)  to  have  said,  in  that  case,  if  it 
be  considered  as  at  common  law,  there  is  no  such  plea  ;  if  on  the 
statute,  the  act  is  not  pursued,  and  the  plaintiff  could  not  take 
issue  on  it,  for  the  issue  is  immaterial ;  the  jury  might  find  him 
not  guilty  infra  quatuor  annos,  but  guilty  infra  sex  annos.  Such 
a  plea  is,  at  best,  but  argumentative,  and  it  is  better  that  the  plea 
of  the  statute  should  be  precise  and  direct.  11  Mod,  38,  S.  0. 

In  the  cases  that  have  been  cited  from  Tremaine's  Pleas  and 
Sir  Thomas  Raymond,  the  plea  was,  a  possession  of  three  years, 
though,  in  the  first  case,  it  is  evident  that  the  possession  was,  at 
least,  six  years.  This  is  confirmatory  of  the  opinion  that  has 
been  stated. 

This  plea  is  therefore  defective,  yet  I  confess  that  I  do  not 
like  to  give  more  weight  to  exceptions  of  this  nature  than  I  am, 
compelled  to,  and  I  felt  a  strong  inclination  to  give  liberty  to 
amend  it.  But  I  do  not  recollect  any  case  of  this  description  in 
which  this  has  been  done,  and  I  do  not  therefore  feel  myself 
authorized  to  order  an  amendment.  Judgment  must  therefore 
be  in  favour  of  the  demurrer. 

Judgment  for  demurrant. 


404  NEW  JERSEY  SUPREME  COURT. 

Brooks  v.  Brooks. 

In  the  case  of  TIMOTHY  BRUSH. 

OS  CERTIOBARI. 

One  who  has  been  arrested  on  a  ca.  res  and  permitted  oy  sheriff  to  go  at  large, 
is  not  "in  confinement  for  debt"  within  the  meaning  of  the  insolvent  law. 

The  case,  as  staled  by  tho  judges,  and  returned  with  the  cer- 
tiorari,  was,  that  Timothy  Brush  had  been  arrested  on  a  capias 
ad  respondendum,  and  in  January,  1796,  received  permission  from 
the  plaintiff  in  the  suit  and  the  sheriff,  to  go  at  largo,  being 
merely  directed  to  attend  occasionally  at  court.  Under  this 
permission  he  remained  at  large  and  pursued  his  business. 

An  act  of  assembly  was  passed  17th  March,  1796,  for  the  relief 
of  insolvent  debtors,  and  under  the  words  of  this  act  the  benefits 
of  it  were  extended  to  all  persons  "now  in  confinement  for  debt," 
&c.  The  question  before  the  Court  was,  whether  Brush  was  in 
actual  confinement  for  debt  within  the  meaning  of  the  act? 

The  case  was  argued  by  R.  Stockton,  against  the  discharge,  and 
Frelinghuysen,  for  it. 

Per  curiam.  This  was  not  such  a  confinement  as  was  intended 
by  the  act,  which  was  meant  to  be  a  confinement  in  gaol.  Brush 
was  not  an  object  of  the  law,  and  the  proceedings  must  therefore 
be  quashed. 

Proceedings  quashed. 

CITED  IB  Smick  v.  Opdycke,  7  Sal.  351. 


Executor  of  EDWARD  BROOKS,  senior,  against  executors  of  EDWARD 
BROOKS,  junior. 

Where  over  is  demanded,  and  the  manner  in  which  it  is  given  is  unsatisfac- 
tory, the  objection  must  be  made  at  the  trial,  and  not  by  motion  to  produce  the 
papers  that  are  wanted. 

This  was  a  motion  by  the  defendant  to  produce  the  bonds  and 
evidences  which  were  to  be  produced  on  tho  trial. 

Griffith  for  motion.    Leake  contra. 

Per  curiam.  The  time  to  take  advantage  of  an  insufficient 
compliance  with  tho  demand  for  oyer  is  at  the  trial,  and  it  can, 
not  be  done  by  a  motion  to  produce  papers. 

Bule  refused. 


SEPTEMBER  TERM,  1797.  405 


Newton  v.  Gloucester  Town. 


SALTAR  against  administrator  of  SALTAR. 

When  statute  of  limitations  pleaded,  leave  given  to  add  a  count  stating  a 
promise  by  administrator. 

E.  STOCKTON  moved  to  add  a  count  to  the  declaration,  stating 
a  promise  by  the  administrator,  the  statute  of  limitations  having 
been  pleaded  to  the  declaration  on  a  promise  by  intestate. 

Griffith,  for  defendant,  said  he  was  not  prepared  to  oppose  it; 
if  the  application  was  correct  the  court  would  of  course  grant  it. 

Per  curiam.    We  think  the  application  right,  and  that  it  ought 
to  be  granted. 
Motion  granted. 

NOTE. — In  Massachusetts  it  has  been  held,  in  a  case  of  this 
kind,  that  a  special  count  laying  a  promise  to  an  administrator 
is  unnecessary,  (Baxter  v.  Penniman,  8  Mass.  133)  though  it  is 
required  in  the  English  practice.  Dean  v.  Crane,  1  Salk.  28. 

CITED  IN  Ten  Eyck  v.  D.  &  R.  Canal  Co.,  4  Harr.  5.     Ridgway  v  English,  2 

Zab.  421. 


Overseers  of  NEWTON  against  overseers  of  GLOUCESTER  TOWN. 

ON  CERTIORAKI. 

No  bill  of  exceptions  lies,  in  settlement  cases,  to  the  proceedings  of  the  sessions. 
The  Supreme  Court  cannot  compel  the  sessions  to  state  the  case,  nor  receive 
affidavits  to  prove  that  they  have  acted  improperly. 

CERTIORARI  to  the  justices  of  Sessions  of  Gloucester,  to  remove 
an  order  of  two  justices,  adjudging  the  settlement  of  Rebecca 
Adams,  in  Gloucester  Town,  from  which  Gloucester  Town 
appealed,  and  the  sessions,  on  hearing,  quashed  the  order  of  the 
two  justices. 

To  this  certiorari,  the  sessions  made  a  general  return,  that  on 
hearing  the  proofs,  &c.  they  quashed  the  order  of  the  two  jus- 
tices, with  costs,  &c. 

This  return  was  made  to  April  term,  1797,  when  a  rule  was 
obtained  by  the  counsel  for  Newton,  to  shew  cause  why  this 
order  of  the  sessions  should  not  be  set  aside. 

In  support  of  this  rule,  at  this  term,  Griffith  and  Davenport, 
offered  to  read  their  own  affidavits,  which  stated,  that  on  the 
hearing  of  the  appeal  before  the  sessions,  they,  in  order  to  prove 


406  NEW  JEESEY  SUPREME  COURT. 

Newton  v.  Gloucester  Town. 

that  the  place  of  the  pauper's  birth  and  settlement  was  Gloucester 
Town,  offered  the  pauper  herself,  and  one  Hannah  Fortune,  as  wit- 
nesses to  this  point :  that  the  counsel  for  Gloucester  Town  objected 
to  their  evidence,  because  they  were  slaves,  and  had  never  been 
legally  manumitted.  To  support  their  competency,  evidence  was 
produced  shewing  that  they  were  both  manumitted,  but  there  was 
no  evidence  that  the  bond  for  indemnifying  the  township  had 
been  previously  given  by  their  respective  masters,  and,  on  this 
ground,  the  sessions  refused  to  admit  their  testimony. 

Woodruff  (attorney-general)  and  Lawrence  objected  to  the 
reading  of  these  affidavits.  In  a  case  of  this  kind,  the  court  is 
precluded  from  receiving  any  evidence  of  what  took  place  before 
the  sessions,  except  their  return.  In  Oulion  v.  Wells,  Bur.  Sett. 
Ca.  64,  2  Sotts.  850,  a  question  of  the  same  kind  occurred,  and 
Lord  Hardwicke  and  the  whole  court  held,  that  though  the 
determination  was  very  plainly  against  law,  they  could  not  do 
what  justice  evidently  required.  If  the  justices  will  not  state 
the  real  facts  of  the  case,  there  is  no  mode  of  compelling  them 
to  do  it.  In  the  King  v.  Preston,  2  Botts.  827,  2  Strange.  1040, 
Bur.  Sett.  Ca.  77,  the  language  of  Lord  Hardwicko  is  applicable 
to  this  case.  "  It  has  been  much  wished  that  a  bill  of  exceptions 
would  lie  to  the  justices  at  their  sessions,  because  otherwise  it 
may  sometimes  happen  that  they  may  determine  in  an  arbitrary 
manner,  contrary  to  the  resolutions  of  the  courts  of  law:  for  if 
the  justices  will  not  state  the  facts  specially,  though  requested 
so  to  do  when  the  matter  is  doubtful,  this  is  very  blamable  con- 
duct in  them." 

Griffith  and  Davenport,  for  the  motion.  The  rule  is  to  set 
aside  the  order  of  sessions,  not  to  conform  the  order  of  the  jus- 
tices, and  the  object  is,  to  have  the  cause  sent  down  again  to  the 
sessions,  and  the  evidence  in  question  admitted  on  a  mandamus. 

The  facts  stated  in  the  affidavits,  which  serve  as  the  founda- 
tion for  the  present  application,  must  be  taken  as  true  in  the 
absence  of  all  contradictory  proof.  If  this  case,  then,  be  properly 
laid  before  the  court,  is  it  possible  to  imagine  one  in  which  the 
rights  of  a  party  have  been  more  evidently  outraged?  and  can 
there  be  a  grosser  libel  upon  the  administration  of  law  in  this 
country,  than  to  say,  that  such  indefensible  proceedings  are 
without  redress? 


SEPTEMBER  TEEM,  1797.  407 

Newton  v.  Gloucester  Town. 

The  question  is  simply,  if  the  sessions  have  done  a  manifest 
wrong  in  rejecting  legal  and  unobjectionable  testimony,  whether, 
from  a  mistake  of  the  law,  or  from  ignorance  or  partiality,  and 
then,  in  order  to  prevent  the  party  injured  from  obtaining  redress, 
refuse  to  state  the  facts  of  the  case,  whether  this  court  may  not 
vacate  the  proceedings  upon  certiorari,  on  satisfactory  proof  of 
the  erroneous  judgment? 

This  is  a  species  of  jurisdiction  clearly  incident  to  this  court; 
it  has  been  recognized  and  exercised  in  innumerable  instances, 
in  controling  the  proceedings  of  justices  of  the  peace,  surveyors 
of  the  highways,  judges  of  elections,  &c.  It  is  the  height  of  ab- 
surdity to  say,  that  the  exercise  of  the  right  of  overseeing  and 
rectifying  the  errors  of  inferior  tribunals  is  to  depend  altogether 
upon  the  pleasure  of  these  inferior  tribunals;  that  unless  they 
choose  to  state  the  case,  the  injured  party  is  remediless. 

The  authorities  that  have  been  cited,  go  to  prove  that  the  su- 
perior court  will  not  investigate  the  merits  of  the  case;  and  thia 
is  not  questioned.  They  will  not  assume  the  powers  of  an  ap- 
pellant jurisdiction,  and  declare  where  the  settlement  legally  is; 
but,  as  a  superintending  jurisdiction,  they  will  and  ought  to  see 
that  these  inferior  tribunals  exercised  their  powers  justly  and  re- 
gulai'ly.  In  this  case,  this  court  is  not  called  upon  to  decide  the 
question,  whether  the  reversal  of  the  order  of  justices  was  cor- 
rect or  incorrect?  but  here  is  a  gross  irregularity  complained  of, 
a  refusal  to  hear  legal  testimony,  and  the  object  is  to  compel  tho 
sessions  to  receive  the  testimony.  This  distinction  is  recognized 
in  Lofft  184,  and  is  reconcilable  to  reason  and  common  sense. 

KINSEY  C.  J.  delivered  the  opinion  of  the  court.  There  is  no 
difficulty  in  saying,  that  the  sessions  have  done  wrong  in  reject- 
ing these  witnesses,  and  were  highly  reprehensible  in  not  stating 
the  points  which  arose  in  the  case ;  yet  we  think  it  a  settled  point, 
that  no  bill  of  exceptions  lies  to  their  proceedings  in  settlement 
cases,  and  of  course  we  cannot  receive  affidavits,  to  prove  that 
they  have  acted  erroneously. 

We  have  every  inclination  to  rectify  these  improper  and  ille- 
gal proceedings,  but  we  are  concluded  by  the  return. 

Order  of  sessions  affirmed.* 

*Sed  vide  Overseers  of  Mendham  v.  Morris,  2  South.  810,  that  Quarter  Sessions 
will  be  ordered  to  send  up  state  of  case. 


408  .NEW  JERSEY  SUPREME  COURT. 


Meredith  v.  Banks. 


MEREDITH  agaimt  BANKS. 

The  mode  of  calculating  interest,  when  there  has  been  partial  payments,  is, 
to  calculate  to  the  time  of  payment,  then  the  sum  paid  deducted  from  the 
amount,  and  interest  calculated  on  the  residue  to  the  next  payment. 

Several  questions  were*  involved  in  this  case,  but  they  were 
generally  questions  of  fact.  The  court,  however,  in  their  opinion, 
laid  down  the  following  rule  in  the  calculation  of  interest. 

Per  curiam.  The  court  has  determined,  and  the  practice  has  uni- 
formly been,  whatever  the  mercantile  mode  of  calculating  interest 
may  be,  that,  when  there  have  been  several  payments,  the  interest 
should  be  calculated  to  the  time  of  the  first  payment,  then  the  sum 
paid  credited  and  deducted  from  the  whole  amount,  and  interest 
calculated  on  the  residue  till  the  next  payment ;  and  so  throughout. 

NOTE.— In  Tracy  v.  Wikoff,  1  Dal.  124,  M'Kean  C.  J.  laid 
down  the  following  rule  in  computing  interest:  "The  rule  of 
computing  interest  must  be  such,  that  the  interest  of  money  paid 
in  before  the  time  must  be  deducted  from  the  interest  of  the 
whole  sum  due  at  the  time  appointed  by  the  instrument  for  mak- 
ing the  payments.  For  instance,  a  bond  to  pay  £100,  with  an- 
nual interest  at  6  per  cent.,  and  at  the  end  of  six  months  £50  is 
paid  in.  This  payment  shall  not  be  apportioned  £3  to  the  dis- 
charge of  the  half  year's  interest,  and  £47  to  the  diminution  of 
the  principal,  so  as  to  calculate  the  remaining  interest  at  6  per 
cent,  on  £53  for  six  months:  but  the  interest  shall  be  charged 
at  the  end  of  the  year  upon  £100;  the  payment  of  £50  shall 
then  bo  deducted  from  the  aggregate  sum  of  £106  and  tho 
obligor  receive  a  credit  for  £1  10s.  as  the  interest  of  £50  for  six 
months.  In  Penrose  v.  Hart,  Ib.  378,  Shippen  President  said, 
he  remembered  to  have  heard  of  an  old  decision,  when  Lo- 
gan was  Chief  Justice,  in  which  it  was  expressly  settled,  that 
money  paid  on  account  of  a  bond  should  first  be  applied  to  dis- 
charge the  interest  due  at  the  time  of  tho  payment,  and  the  resi- 
due, if  any,  credited  towards  satisfaction  of  the  principal ;  and 
this  rule  had  been  adopted  as  the  uniform  practice.  This  seems 
to  be  tho  rule  in  Massachusetts.  Edes  v.  Goodridge,  4  Mass. 
Rep.  103.  This  rule  appears  the  most  equitable,  but,  as  usually 
practiced,  it  frequently  leads  to  the  charge  of  compound  interest. 


NOVEMBER  TERM,  1797.  409 

Allen  v.  Hickson. 

In  Lewis's. executor  v.  Bacon's  legatee  and  executors,  3  Hen.  and 
Munf.  89,  where  a  creditor  kept  an  account  current  with  his 
debtor,  and  also  an  interest  account,  in  which  he  charged  interest 
on  the  several  items  of  debit  to  a  particular  period  and  gave 
credit  by  interest  on  the  several  payments  to  the  same  period, 
and  charged  in  the  account  current,  the  balance  appearing  on  the 
interest  account,  and  a  balance  being  then  struck,  interest  was 
again  charged  on  that  balance  thus  consisting  of  principal  and 
interest,  the  court  held  it  to  be  compound  interest  and  not  allpw- 
able.  Perhaps  the  rule  laid  down  by  Chancellor  Kent,  in  the  case 
of  The  State  of  Connecticut  v.  Jackson,  1  John.  Ch.  Eep.  13,  17,  is 
more  entirely  free  from  objection  than  any  other  that  can  be 
adopted.  "  The  rule,"  says  this  able  and  distinguished  judge, 
"  for  casting  interest  when  partial  payments  have  been  made,  is  to 
apply  the  payment,  in  the  first  place,  to  the  discharge  of  the  interest 
then  due.  If  the  payment  exceeds  the  interest,  the  surplus  goes 
towards  discharging  the  principal,  and  the  subsequent  interest  is 
to  be  computed  on  the  balance  of  principal  remaining  due.  If 
the  payment  be  less  than  the  interest,  the  surplus  of  interest  must 
not  be  taken  to  augment  the  principal;  but  interest  continues  on 
the  former  principal  until  the  period  when  the  payments  taken 
together  exceed  the  interest  due,  and  then  the  surplus  is  to  be 
applied  towards  discharging  the  principal,  and  interest  is  to  be 
computed  on  the  balance  of  principal  as  aforesaid. 

CITED  IN  Baker  v.  Baker,  4  Dutch.  15.      Hutchinson  v.  Onderdonk,  2  Sal. 

277,  293. 

NOTE. — During  this  vacation,  Mr.  Justice  Chetwood  was  compelled,  by  con- 
tinued and  increasing  bad  health,  to  resign  his  seat  as  one  of  the  justices  of  this 
court,  a  situation  which  he  had  held  for  many  years  with  distinguished  credit 
to  himself  and  satisfaction  to  the  public.  Andrew  Kirkpatrick  esq.  was  elected 
to  supply  the  vacancy  occasioned  by  the  resignation  of  Mr.  Justice  Chetwood,  and 
took  nis  seat  on  the  bench  in  November  term  following. 


[NOVEMBER  TERM,  1797.] 
ALLEN  against  HICKSON. 

OK  CEETIOEAEI. 

An  action  will  not  lie  to  recover  back  an  unreasonable  amount  of  costs, 
which  had  been  taxed  and  paid :   the  proper  remedy  is  by  relaxation. 

From  the  return  in  this  case,  it  appeared  that  Hickson,  had 
sued  Allen  in  the  Common  Pleas  of  Sussex  county,  and  obtained 


410  NEW  JERSEY  SUPREME  COURT. 

Harrison  v.  Sloan. 

judgment  for  debt  and  costs,  Allen  paid  the  debt  to  Hickson, 
and  the  costs  to  the  sheriff,  and  then  brought  this  action,  alleg- 
ing— 1.  that  Hickson  had  run  him  to  unnecessary  costs.  2.  That 
the  costs  were  unreasonably  high. 

Per  curiam.  A  suit  cannot  be  sustained  on  such  grounds :  if  the 
costs  be  unreasonable,  relaxation  is  the  proper  remedy.  It  would 
be  to  allow  a  justice  to  set  aside  the  judgment  of  the  Common 
Pleas,  a  tribunal  of  superior  powers  to  his  own,  which  had 
decreed  a  particular  sum  as  legal  costs. 


HARRISON  and  others  against  SLOAN,  manager,  Ac. 

ON  CERTIORARI. 

Where  referees  have  been  appointed  under  the  directions  of  an  act  of  the 
legislature,  the  court  will  not  examine  into  the  legality  of  this  appointment 
until  the  referees  have  proceeded  to  act. 

It  appeared,  that  by  an  act  of  assembly,  passed  2d  of  June, 
1790,  the  managers  of  certain  meadows,  in  the  county  of  Glouces- 
ter, called  Newton  meadows,  were  authorized  to  make  a  sug- 
gestion to  the  Court  of  Common  Pleas,  who  were  empowered  to 
appoint  three  or  more  referees  to  settle  the  differences,  &c.  who 
after  hearing  the  allegations,  proofs,  &c.  were  to  make  an  award 
which  should  be  made  a  judgment  of  the  said  court,  and  be  final 
between  the  managers  and  the  owners  of  the  meadow. 

James  Sloan,  the  manager,  made  an  application,  under  this 
act,  to  the  Common  Pleas  of  Gloucester  county,  and  in  March, 
1797,  the  court  appointed  referees.  Harrison,  and  the  other 
plaintiffs,  considering  themselves  aggrieved  by  these  proceedings, 
brought  this  certiorari,  and  on  a  rule,  which  had  been  obtained 
by  the  defendant,  to  shew  cause  why  this  certiorari,  should  not 
be  quashed,  quia  improvide,  &c.  it  was  argued  by 

Lawrence,  Woodruff,  (attorney-general)  and  R.  Stockton,  for 
the  rule,  and 

Griffith,  Leake,  and  Davenport,  against  it. 

For  the  motion.  The  complainants  have  proceeded  too  early, 
and  before  any  ground  has  been  furnished  them  to  say  that  they 
have  sustained  injury.  No  certioran  will  lie  until  the  final  act  of 
the  court,  to  wit,  the  judgment  on  the  award  of  referees.  In 


NOVEMBER  TEKM,  1797.  411 

Harrison  v.  Sloan. 

Rex  v.  Nicolls,  2  Str.  1227,  a  rule  to  shew  cause  why  the  certiorari 
should  not  be  quashed,  on  the  ground  that  it  was  brought  before 
the  judgment  of  the  inferior  court,  was  made  absolute,  and  the 
cause  remitted  to  the  sessions.  Gilb.  on  Exec.  206. 

Whenever  the  superior  court  cannot  proceed  in  the  cause,  they 
will  not  permit  a  certiorari  to  issue,  because  when  once  it  is 
removed  it  cannot  be  sent  back,  and  thus  the  law  would  bo 
evaded.  Sand's  case,  1  Salk.  143.  In  the  present  case,  if  a  cer- 
tiorari can  be  taken  out  pendente  lite  it  stops  the  inferior  court 
altogether:  this  court  must  either  quash  or  affirm,  in  toto,  if  it 
should  affirm,  the  proceedings  could  not  be  remanded,  the  whole 
business  must  be  commenced  anew.  A  certiorari  for  the  removal 
of  a  presentment  before  justices  in  Eyre,  of  a  matter  which  is 
punishable  by  the  forest  law  alone,  shall  not  be  granted  before 
conviction,  for  if  so,  the  offence  would  go  unpunished.  1  Bac. 
Abr.  560.  2  Hawk.  P.  0.  408. 

It  is  not  too  late  to  object  to  the  issuing  of  a  certiorari  after 
it  is  actually  returned,  for  "if  the  certiorari  issued,  improvide, 
the  court  can  order  it  to  be  superseded,  and  tbe  return  taken 
off  the  file,"  of  which  Lord  Mansfield  said,  in  Rex  v.  Wakefield, 

1  Bur.  485-9,  there  had  been  several  instances.     Rex  v.  Morcly, 

2  Bur.  1040.     In  case  of  Woodward  v.  Potts,  the  certiorari  to  the 
Orphans'    Court   was   quashed,   because   this  court  could   not 
exercise  the  powers  committed  to  that  tribunal  by  the  act  of 
assembly.  . 

Against  the  rule  it  was  argued — That  so  far  as  to  furnish  a 
ground  for  the  interposition  of  this  court,  the  Common  Pleas 
had  already  acted ;  they  had  made  a  complete  order.  The  ap- 
pointment of  referees  was  the  act  complained  of  as  irregular, 
and  so  far  the  powers  of  the  inferior  tribunal  were  spent.  The 
question  is  as  to  the  legality  of  this  appointment;  if  it  is  illegal 
it  would  be  preposterous  to  wait  until  the  expenses  attending  the 
arbitration  were  incurred,  before  the  complaint  was  made.  Con- 
venience and  reasonableness  are  clearly  in  favour  of  the  pro- 
ceeding that  has  been  adopted,  because  if  the  act  already  done 
is  unwarranted,  time  and  money  would  be  saved  the  parties :  if 
legal,  there  would  be  no  difficulty  in  setting  the  inferior  tribunal 
free,  which  could  as  readily  be  done  by  quashing  the  certiorari 
on  the  merits,  as  in  this  manner  on  motion  ;  or  they  might  then 
order  the  certiorari  and  return  taken  from,  the  files,  or  unless 


412  NEW  JERSEY  SUPREME  COURT. 

Harrison  v.  Sloan. 

Borne  difficulty  now  unseen  should  exist,  a  procedendo  might 
issue. 

In  the  King  v.  Reeve,  I  BL  Rep.  231,  Lord  Mansfield,  observed, 
"  this  court  hath  an  inherent  right  to  issue  certiorari,  in  order  to 
keep  all  inferior  courts  within  due  bounds.  If  the  justices  below 
have  done  right,  you  may  shew  it  and  quash  the  certiorari;  but 
if  there  be  the  least  doubt,  this  court  will  grant  the  writ.  The 
King  v.  Whitbread,  Doiigl.  548,  shews  that  a  certiorari  is  a 
proper  course  to  ascertain,  whether  or  not  a  court  has  jurisdic- 
tion ;  and  if  it  has  not  every  thing  done  by  it,  is  nullified.  (Gey- 
ger  v.  Stay,  1  Dall.}  and  the  earlier  its  proceedings  are  stopped, 
and  the  question  of  jurisdiction  settled,  the  better  it  is  for  all 
the  parties  interested. 

The  act  under  which  these  referees  were  appointed,  is  clearly 
unconstitutional,  hostile  to  the  fundamental  principles  of  our 
government,  and  contrary  to  the  rights  of  our  citizens.  The 
right  to  a  trial  by  jury,  before  our  property  or  our  rights  can  bo 
wrested  from  us,  is  one  of  the  most  sacred  privileges  of  an 
American  citizen,  and  independent  of  any  provision  in  the  con- 
stitution, it  would  be  beyond  the  powers  of  a  limited  legislature 
to  curtail  its  exercise.  But  in  the  22d  article  of  the  constitu- 
tion of  New  Jersey, it  is  expressly  declared,  "that  the  inestima- 
ble right  of  trial  by  jury  shall  remain  confirmed,  as  part  of  the 
law  of  this  colony  for  ever."  In  what  manner  can  this  privilege 
be  more  clearly  and  palpably  violated,  than  by  such  a  legislative 
act,  as  that  upon  which  these  proceedings  are  founded  j  which 
enacts  that  in  case  of  disputes,  the  Court  of  Common  Pleas, 
upon  an  exparte  application,  may  appoint  referees,  who  shall  bo 
empowered  to  make  a  final  decision  upon  the  case  ?  This  excep- 
tion we  regard  as  fatal. 

In  reply,  this  court  will  never  interfere  with  the  proceedings 
of  an  inferior  tribunal,  unless  it  is  itself  vested  with  power  to 
afford  the  necessary  relief.  This  is  not  contended  for  in  the  pres- 
ent case,  and  it  will  surely  be  early  enough,  when  the  award  of 
the  referees  has  been  made  a  judgment  ot  the  Common  Pleas. 

SVith  regard  to  the  objection  that  has  been  urged  from  the 
constitution,  it  will  be  sufficient  to  state,  that  independent  of  that 
instrument,  the  legislature  of  every  community  must  be  vested 
with  power  to  vary  or  modify  the  mode  of  terminating  private 
differences,  whatever  they  may  be:  that  the  trial  by  jury  might 


NOVEMBER  TERM    Lrtl.  413 


Harrison  v.  Sloan. 


be  extended  to  new  subjects,  and  others  might  be  withdrawn 
from  this  tribunal.  The  constitution  itself  furnishes  no  excep- 
tion in  a  case  like  the  present.  It  "confirms  the  trial  by  jury;" 
that  is,  it  directs  it  to  remain  as  it  had  already  been  established. 
Every  subject  of  litigation,  which,  previously  to  the  ratification 
of  that  instrument,  had  been  usually  subject  to  a  d'fferent  kind 
of  determination  remained  so  still. 

The  custom  of  banking  and  draining  large  bodies  of  meadow,  by 
a  single  bank,  had  prevailed  in  this  state,  from  the  earliest  periods, 
and  had  given  rise  to  numerous  companies,  by  whom  these  neces- 
sary improvements  had  been  constructed  and  supported.  Nu- 
merous acts  of  the  legislature,  had  in  consequence  been  passed 
anterior  to  the  resolution,  similar  in  principle  and  in  provision, 
to  that  under  consideration  ;  and  it  is  perhaps  the  only  mode  in 
which  disputes  of  this  kind  could  be  properly  terminated. 

Every  ground  of  objection  on  this  score,  however,  must  be 
considered  as  removed,  when  it  is  recollected  that  the  act  itself 
states,  that  it  was  passed  on  the  application  of  the  owners  of  these 
meadows,  and  the  whole  proceedings  are  therefore  to  be  looked 
upon  as  the  voluntary  appointment  of  referees  by  the  parties  in 
person.  If  the  constitution  guarded  the  rights  of  the  parties 
from  any  legislative  violation,  and  secured  to  them  for  ever  the 
benefit  of  a  jury  trial,  it  was  surely  competent  for  them  to  waive 
this  advantage,  and  to  consent  to  another  mode  of  adjudication. 

I/eake,  cited  Rex  v.  Williams,  1  Bur.  385  ;  Hex  v.  Hartshorne,  2 
Bur.  745  ;  1  Sellon's  Prac.  501,  to  shew  that  consent  cannot  cure 
defects  of  jurisdiction,  but  that  all  the  proceedings  before  a 
tribunal  without  jurisdiction  are  void. 

KINSEY  C.  J.  This  case  will  probably  in  its  future  stages, 
involve  questions,  upon  which  it  would  be  equally  indecorous 
and  unjust  to  pass  a  hasty  decision:  these  questions,  however, 
though  they  have  been  dwelt  upon  in  the  argument,  do  not 
require  our  opinion  at  this  time. 

The  question  before  us  is,  whether  this  certiorari  ought  to  be 
quashed  ?  Whether  a  certiorari  is,  or  is  not  sustainable,  is,  as  we 
conceive,  always  a  matter  addressed  to  the  sound  discretion  of 
the  court.  In  this  case  we  do  not  think  that  we  are  called  upon, 
at  this  early  stage  of  the  proceedings,  to  enter  into  an  examina- 


414  NEW  JERSEY  SUPREME  COURT. 


M'Donald  v.  Lawry. 

tion  of  all  the  questions  that  have  been  discussed.  I  think  the 
application  premature,  and  am  therefore  of  opinion  the  certiorari 
ought  to  be  quashed. 

SMITH  J.  concurred  with  the  Chief  Justice. 

KIBKPATRICK  J.  I  am  decidedly  of  opinion,  that  the  certiorari 
has  issued  prematurely :  I  am  also  clear,  that  this  is  not  the 
proper  mode  of  contesting  the  jurisdiction  of  any  court.  See  1 
Lilly's  Abr.  363. 

Certiorari  quashed. 


M'DONALD  againtt  LAWRY. 
DUNHAM  against  SAME. 

The  court  will  not  undertake  to  determine  the  question  of  priority  between 
two  executions,  on  the  application  of  one  of  the  parties  interested. 

The  plaintiffs  in  these  actions  had  obtained  judgments,  and 
taken  out./?,  fa's,  which  were  put  into  the  hands  of  the  sheriff. 
The  sheriff  having  died,  and  the  process  being  executed  by  his 
successor,  property  was  levied  upon  and  sold,  and  the  proceeds 
brought  into  court. 

Boudinot,  for  M'Donald,  applied  to  the  court  to  direct  the 
sheriff  to  pay  the  money  to  M'Donald,  on  the  ground  that  his 
execution  was  first  delivered  to  the  sheriff. 

I/eake,  for  Dunham,  opposed  the  application. 

Per  curiam.  The  plaintiffs  in  these  suits  have  placed  their 
respective  executions  in  the  hands  of  the  late  sheriff,  whose 
death  renders  it  difficult  to  ascertain  which  was  delivered  to  him 
first.  It  is  impossible  for  us  to  take  upon  ourselves  to  determine 
the  question  of  precedency:  the  parties  have  in  their  power  to 
try  it  in  a  legal  manner,  and  to  that  they  must  have  recourse. 


APKIL  TERM,  1798.  41b 


White  v.  Hunt. 


[APRIL  TERM,  1798.] 

DEN  ex  dem.  PANCOAST  against  CURTIS. 

The  party  has  until  the  last  day  of  the  term  succeeding  the  publication  of  an 
award  to  except  to  it:  but  the  argument  ought  to  be  brought  on  the  second  term. 
The  publication  of  the  award  is  the  reading  and  filing  it  in  court. 

In  this  case  referees  bad  been  appointed,  wbo  made  report  to 
November  Term,  1797. 

Griffith,  for  plaintiff,  moved  for  judgment,  as  no  reasons  had 
been  filed,  or  affidavits  served  on  bim,  during  tbo  vacation, 
against  the  award. 

L.  H.  Stockton,  contra,  insisted  that  by  the  rules  of  practice, 
he  was  allowed  until  the  last  day  of  the  present  term  to  except 
to  the  award,  this  being  the  term  next  after  the  publication  of 
it.  9  &  10  W.  3,  c.  15. 

KINSET  C.  J.  This  is  the  correct  rule,  but  the  cause  ought  to 
be  brought  to  argument  the  second  term. 

Griffith  stated,  that,  under  the  statute  that  had  been  cited,  the 
complaint  was  to  be  made  "in  court,  before  the  last  day  of  the 
next  term  after  such  arbitration  made  and  published  to  the  par- 
ties." This  award  has  been  made  previous  to  the  last  Septem- 
ber Term,  and  at  that  time  published  to  the  parties,  though  not 
read  and  filed  until  November  Term  following. 

KIRKPATRICK  J.  The  publication  of  a  report  must  be  the 
reading  and  filing  it  in  court ;  so  that  the  present  is  the  term 
next  after  publication. 

Per  curiam.    Let  the  cause  stand  over  until  May  Term. 


WHITE  against  HUNT. 

In  an  action  of  trespass,  if  plaintiff  recovers  less  than  £5C  damages,  he  shall 
not  recover  costs. 

The  rule  is  the  same,  whether  the  damages  are  assessed  by  jury  on  the  trial 
or  on  a  writ  of  inquiry. 

This  was  an  action  of  trespass  for  an  assault,  battery,  and 
wounding.  On  a  judgment  by  default,  the  plaintiff  proceeded 


416  NEW  JEKSEY  SUPitEME  COURT. 

White  v.  Hunt. 

before  the  sheriff,  and  the  jury,  on  the  execution  of  the  writ  of 
inquiry,  assessed  the  plaintiffs  damages  at  £4  10s. ,  The  plaintiff 
entered  up  judgment,  taxed  full  costs,  amounting  to  £12  Is.  and 
issued  ay?,  fa. 

The  defendant  obtained  a  rule  upon  the  plaintiff  to  shew 
cause  why,  upon  bringing  into  court  the  amount  of  the  damages 
that  have  been  assessed  by  the  jury,  they?,  fa.  should  not  be  set 
aside  as  to  the  costs,  and  satisfaction  entered  on  the  record. 

It.  Stockton,  for  the  rule.  This  question  depends  wholly  upon 
the  construction  that  is  to  be  given  to  the  fifth  section  of  the  act 
of  June  5,  1782.  It  is  enacted  by  that  section,  that  "  if  any  per- 
son shall  commence,  sue,  or  prosecute  any  suit,  for  any  debt  or 
demand  in  the  Supreme  Court  of  this  state,  and  shall  obtain  a 
verdict  thereon  for  debt  or  damages,  which  verdict,  without  costs 
of  suit,  shall  not  amount  to  £50,  such  person  so  prosecuting, 
shall  not  recover  or  have  any  cost  in  such  suit,  unless  under  tho 
same  exceptions  as  are  expressed  in  the  act,  entitled  an  act  to 
prevent  actions  of  fifteen  pounds  and  under,  being  brought  in 
the  Supremo  Court  of  this  colony,  any  law,  usage,  or  custom," 
&c.  Wilson's  Laws  264. 

In  this  act,  the  word  "  demand  "  must  possess  some  meaning 
different  from  "debt,"  and  the  "damages"  to  be  recovered,  as  well 
as  the  debt,  must  exceed  £50.  In  tho  act  referred  to  as  furnishing 
tho  exceptions,  they  are  stated  to  be  -' actions  in  which  titles  of 
lands,  tenements,  hereditaments,  or  other  real  estates  are  any  wise 
concerned."  Allinson's  Laws  159.  Every  other  species  of  demand 
is  therefore  within  tho  law,  and  it  must  apply  to  actions  of  tres- 
pass. The  same  language  is  employed  by  the  legislature  in  a 
recent  act,  passed  6th  November,  1797.  Paterson's  Laws  258. 

Leake  and  A.  Ogden,  contra.  The  act  of  1782  cannot  be 
understood  to  include  a  case  like  the  present,  where  an  action  is 
brought  for  an  injury  not  cognizable  before  a  justice;  (Allinson 
473)  nor,  indeed,  can  it  bo  considered  as  embracing  any  cases 
of  tort.  This  clearly  appears  to  have  been  the  understanding  of 
the  legislature,  for  in  the  act  of  tho  18th  of  February,  1795, 
(Paterson  149)  in  tho  fourth  section,  it  is  declared,  that  "in  all 
actions  of  trespass  and  assault  and  battery,  commenced  or  prose- 
cuted in  the  Supreme  Court,  wherein  the  judge  at  the  trial  of 


APKIL  TERM,  1798.  417 

White  v.  Hunt. 

the  cause  shall  not  find  aud  certify  that  an  assault  and  battery 
was  proved,  &c.  in  case  the  jury  shall  find  the  damages  to  be 
under  the  value  of  six  dollars,  the  plaintiff  shall  recover  no  more 
costs  than  damages."  If  the  acts  which  have  been  cited  on  the 
other  side  of  the  question  were  considered  by  the  legislature  as 
embracing  a  case  like  the  present,  this  act  would  be  both  useless 
and  absurd.  It  is  the  duty  of  the  judiciary,  as  far  as  possible,  so  to 
construe  the  acts  of  the  legislature  as  to  make  them  harmonize. 

If,  however,  the  previous  acts,  by  a  strict  construction,  be 
considered  as  embracing  the  case  before  the  court,  still  the  act 
of  1795,  being  posterior  in  date,  repeals  and  annuls  the  previous 
provisions  of  the  legislature. 

Another  ground  of  objection  to  this  rule  is  derived  from  the 
circumstances  of  this  being  a  verdict  of  a  jury  of  inquiry.  A 
distinction  exists  between  a  verdict,  and  damages  on  inquisition, 
for  in  the  latter  case,  any  damages,  however  small,  carry  costs, 
Sayer  on  Costs,  30.  Scheiffefs  Prac.  220,  note  22. 

Stockton,  in  reply. 

KINSKY  C.  J.  The  question  before  the  court  seems  to  turn 
upon  the  construction  of  several  acts  of  assembly.  Within  my 
knowledge,  no  judicial  construction  has  ever  been  given  to  the 
act  of  1782,  but  my  brother  Boudinot  recollects  a  case  in  which 
tho  act  of  February  18,  1747-8,  which  is  referred  to  in  the  sub- 
sequent act,  was  held  to  extend  to  cases  of  tort  as  well  as  of 
contract.  The  word  in  the  act  is  demand,  and  this  Lord  Coke,  in 
his  1st  Institute,  considers  as  a  word  of  extensive  signification, 
and  including  everything  which  may  be  demanded  by  suit. 

In  the  construction  of  the  acts  of  the  legislature,  it  has  ever 
been  held  a  sound  and  wholesome  rule,  that  when  divers  laws 
are  made  relating  to  one  subject,  the  whole  must  be  considered 
as  constituting  one  system,  and  mutually  connected  with  each 
other. 

Another  rule  is,  that  when  the  legislature  have  made  use  of  a 
particular  expression,  and  given  to  it  a  plain  and  precise  signifi- 
cation, the  same  word,  when  used  in  other  proceedings,  ought, 
unless  the  contrary  appears  manifestly  right,  to  receive  the  same 
construction.  It  is  unreasonable  to  presume  that  the  legislature  •. 
intended  by  the  same  words,  to  convey  different  ideas. 

VOL.  i.  2  B 


418   •  NEW  JERSEY  SUPREME  COURT. 

White  v.  Hunt. 

In  applying  these  rules,  it  is  to  be  remarked,  that  in  the  law 
of  1747-8,  the  words  used  are,  "any  suit  or  action  whatsoever." 
The  expression  is  general,  and  cannot,  by  any  rule  of  construc- 
tion, be  limited  to  actions  of  contract.  But  every  doubt  must  bo 
removed  when  the  exceptions  pointed  out  in  this  act  are  referred 
to,  and  its  operation  is  expressly  restricted  to  actions  in  which 
the  title  to  real  estate  is  not  in  controversy.  The  legislature,  by 
specifying  this  exception,  have  negatived  the  idea  of  any  other, 
and  we  cannot  presume  to  alter  or  deviate  from  their  language. 

The  next  act  to  which  it  seems  material  to  refer,  is  that  of 
1782,  on  the  fifth  section  of  which  the  question  depends:  that 
act  makes  use  of  the  same  comprehensive  word  "demand,"  and 
adds,  that  "if  any  person  shall  recover  by  verdict  or  judgment, 
less  than  £50,  he  shall  not  recover  costs."  Upon  this  clause  it 
is  to  be  observed,  that  the  word  "or"  is  disjunctive,  and  the 
phrase,  as  it  stands,  equally  embraces  verdicts  on  trial  and 
judgments  by  default. 

This  construction  is  strengthened  by  a  reference  to  some  other 
acts  not  so  directly  connected  with  the  present  question.  By  the 
twelfth  section  of  the  act  of  February  11,  1775,  (Allinson  463)  it 
is  enacted,  that  "if  any  person  shall  sue,  except  before  a  justice, 
for  any  debt  or  demand,  and  shall  obtain  a  verdict  or  judgment 
thereon,  which,  without  costs,  shall  not  amount  to  £6,  he  shall 
recover  no  costs."  These  words  are  sufficiently  comprehensive 
to  include  every  species  of  action,  whether  founded  on  contract 
or  tort;  and  the  legislature,  therefore,  were  obliged,  by  a  special 
exception,  to  exclude  actions  of  replevin  or  slander,  actions  of 
trespass  for  assault  and  battery  or  imprisonment,  &c.  thus  de- 
claring, that  without  a  particular  exception,  these  actions  would 
have  been  within  the  meaning  of  the  previous  section. 

It  is  contended,  however,  that  this  act  of  1782  is  repealed  by 
that  of  1795,  by  which  it  is  enacted,  that  "in  all  actions  of  this 
.nature,  commenced  or  to  be  commenced,  if  the  plaintiff  recovers 
iJess  than  six  dollars,  he  shall  be  allowed  no  more  costs  than 
damages."  This  suit  was  commenced  in  1794,  previous  to  the 
.passing  of  this  law,  and  cannot,  therefore,  bo  considered  as  in- 
, eluded  within  its  provisions,  unless  the  language  clearly  implies 
*  retrospective  operation.  The  word  "commenced"  is  used  in 
one  section,  and  "to  be  commenced"  in  the  other,  but  we  do 
think  that  this  alteration  in  the  phraseology  is  sufficient  to 


APEIL  TEEM,  1798.  419 

Grata  v.  Wilson. 

induce  the  court  to  put  a  construction  of  this  kind  upon  language 
so  ambiguous.  I  am  of  opinion  that  the  rule  should  be  made 
absolute. 

SMITH  J.  concurred. 

KIRKPATRICK  J.  The  import  of  the  word  "demand,"  as  under- 
stood by  the  legislature,  seems  to  be  settled  in  the  act  of  Febru- 
ary, 1775,  and  I  think  we  must  give  it  the  same  construction  in 
that  of  1782.  I  am  not  altogether  satisfied  with  this  construction, 
and  am  inclined  to  adopt  it,  not  because  it  is  clear  of  difficulties, 
but  because  it  seems  to  be  the  freest  of  embarrassment. 

In  regard  to  the  distinction  taken  between  the  words  "com- 
menced" and  "to  be  commenced,"  I  am  not  satisfied  that  the 
legislature,  though  they  varied  their  phraseology,  varied  their 
meaning;  and  when  there  exists  a  reasonable  doubt,  as  there 
unquestionably  does  in  this  case,  I  am  disposed  to  give  the  words 
that  construction  which  is  most  consistent  with  reason  and  equity. 

BOUDINOT  J.  concurred  with  the  Chief  Justice. 
Rule  absolute. 


GRATZ  against  WILSON. 

A  judge  of  the  Supreme  Court  of  the  United  States,  if  arrested  on  a  capias  ad 
respondendum,  in  case  of  which  the  federal  court  has  no  jurisdiction,  shall  not 
be  discharged  on  common  bail. 

Parol  evidence  admitted  to  prove  defendant  a  judge. 

This  was  a  rule  to  shew  cause  why  defendant  should  not  be 
discharged  on  filing  common  bail. 

About  the  26th  of  August,  1797,  the  defendant,  one  of  the 
justices  of  the  Supreme  Court  of  the  United  States,  was  arrested 
on  a  common  capias  ad  respondendum,  out  of  the  Inferior  Court 
of  Common  Pleas  for  the  county  of  Burlington,  and  held  to  bail 
in  $3000. 

At  the  ensuing  term  of  that  court,  an  application  was  made 
to  discharge  the  defendant  from  the  arrest  on  his  filing  common 
bail,  on  the  ground,  that,  being  a  judge  of  the  federal  court,  he 
was  privileged  from  arrest.  The  court,  however,  refusing  to  ad- 
mit parol  proof  of  his  holding  the  commission  of  judge,  the  main 
question  was  not  decided. 


420  TsEW  JERSEY  SUPEEME  COURT. 

Qratz  v.  Wilson. 

The  case  being  removed  to  the  Supremo  Court,  by  a  habeas 
corpus  cum  causa,  returnable  to  November  Term,  1797,  a  similar 
application  was  there  made,  which  was  argued  by 

E.  Stockton  and  Griffith,  for  the  rule,  and 

M'llvaine,A.  Ogden,  and  Woodruff,  (attorney-general)  against  it. 

The  counsel  for  the  defendant  called  witnesses  to  prove  the 
fact,  that  he  was  actually  a  judge  of  the  Supreme  Court  of  the 
United  States,  which  being  objected  to,  and  the  question  argued, 

Per  curiam.    The  evidence  is  admissible. 

For  the  rule.  This  is  a  plain  case  of  privilege,  and  the  high 
and  important  station  of  the  defendant,  while  it  adds  dignity  to 
the  question,  shews,  in  the  clearest  point  of  view,  the  injurious 
consequences  which  may  result  to  the  community  if  any  plaintiff 
can  thus  detain  him  from  the  performance  of  his  duties.  Every 
claim  of  privilege  of  this  description,  every  case  of  exemption 
from  arrest,  is  founded  expressly  upon  motives  of  public  conven- 
ience and  necessity;  it  is  emphatically  the  privilege  of  the  com- 
munity, and  not  of  the  individual. 

The  constitution  of  the  United  States  is  the  supreme  law  of 
the  land,  and  the  justices  of  the  federal  courts,  during  their 
authority  and  powers  from  this  high  office,  are  invested  with  the 
same  privileges,  and  entitled  to  the  same  exemptions  which  the 
judges  of  every  state  court  have  unquestionably  secured  to  them. 

The  claim  which  is  now  made,  is  not  founded  upon  any  preten- 
sions of  personal  pre-eminence,  but  on  the  provisions  of  the  com- 
mon law,  which  protects  from  imprisonment  on  mesne  process,  the 
officers  of  all  courts  of  law,  lest  the  interest  of  the  public  should 
be  injured.  This  view  of  the  subject  ought  to  remove  all  invidious 
or  jealous  feelings  on  account  of  a  claim  of  this  nature. 

All  the  officers  of  the  court,  whose  attendance  is  required  in 
the  administration  of  justice,  are  privileged  from  arrest.  High, 
on  Bail.  6.  3  Bl.  Com.  289.  1  Bac.  Abr.  331.  6  Com.  Dig.  88.  5  Bac. 
Abr.  613.  1  Tidd's  Prac.  264.  This  exemption  is  to  be  applied 
for  by  motion.  2  Sir.  990.  Pitt's  case,  1  Tidd  265. 

Against  the  rule.  Tlje  ground  upon  which  this  privilege  has 
eror  been  allowed  in  England,  has  been  truly  stated  to  bo  the 
interest  of  the  community.  It  was  therefore  never  carried  fur- 


APEIL  TEEM,  1798.  421 

Grata  v.  Wilson. 

ther  than  the  public  good  imperiously  required,  or  than  was  con- 
sistent with  the  rights  of  individuals.  The  interest  of  the  commu- 
nity never  required,  that  an  individual  should  be  deprived  of  a 
just  debt,  and  it  never  therefore  demanded  that  such  a  sacrifice 
should  be  made.  In  England  this  privilege  is  extended  to  all 
the  officers  of  courts,  and  upon  the  principle,  that  the  general 
weal  requires  their  attendance  in  the  courts  to  which  they  re- 
spectively belong.  But  the  doors  of  justice  are  never  closed,  and 
every  court  permits  its  officers  to  be  prosecuted  to  justice,  in 
the  manner  conformable  to  its  own  dignity:  it  is  founded  on  the 
idea,  that  the  person  is  answerable  some  where,  and  is  to  be 
presumed  always  amenable  in  the  court  to  which  he  belongs. 
Gilb.  H.  C.  B.  209.  See  Dyer  287.  TurbiWs  case,  I  Saund.  67, 
Ridge  v.  Hardcastle,  8  Term  Eep.  417,  accord, 

The  plaintiff  and  defendant,  in  this  case,  are  both  citizens  of 
the  state  of  Pennsylvania,  and  the  Circuit  or  Supreme  Court 
of  the  United  States,  cannot  have  jurisdiction  of  a  suit  between 
them.  Under  the  3d  article  of  the  constitution  of  the  United 
States,  (see  2)  the  cases  to  which  the  judicial  power  of  the  fed- 
eral government  shall  extend ;  and  both  under  that,  and  the  act 
of  September  24,  1789,  (1  Laws  U.  S.  47)  this  power  is  limited 
not  to  extend  to  controversies  between  citizens  of  the  same  state. 

If  then  it  appears,  that  the  plaintiff  could  not  obtain  redress 
in  the  court  to  which  the  defendant  is  attached,  the  foundation 
upon  which  the  exemption  rests  is  removed,  and  the  claim  fails. 

2.  An  officer  of  a  different  court,  cannot  be  discharged  on 
motion.  The  court  will  not  examine  the  question  of  privilege, 
in  a  cursory  or  collateral  manner,  but  will  require  him  to  file 
special  bail,  and  to  plead  his  privilege  in  abatement.  Mayor  of 
Basingstoke  v.  Benner,  2  Str.  864.  Snee  v.  Humphreys,  1  Wils, 
306,  1  Tidd  172. 

But  in  every  case,  the  defendant,  unless  an  executor,  when  a 
cause  is  removed  by  habeas  corpus,  is  bound  to  put  in  special 
bail,  and  on  the  removal  of  a  cause  from  an  inferior  court,  the 
court  will  not  examine  whether  the  cause  of  action  is  such  as 
to  require  special  bail,  but  will  require  it  even  when  defendant 
has  been  arrested  for  a  sum  under  £10.  High,  on  Bail,  107. 

Phips  v.  Jackson,  6  Mod.  305,  shews  how  privilege  is  to  be 
pleaded. 


4_'_>  NEW  JERSEY  SUPREME  COURT. 

Gratz  v.  Wilson. 

In  reply.  An  attempt  has  been  made  to  render  this  applica- 
tion odious,  by  declamatory  remarks,  rather  than  to  prove  it  un- 
founded in  law.  So  far  as  respects  any  personal  application  to 
the  defendant,  it  is  to  be  observed,  that  he  is  at  this  time  attend- 
ing his  official  duties,  many  hundred  miles  distant;  that  this 
application  is  altogether  unknown  to  him;  that  the  demand  is 
actually  disputed;  and  that  no  idea  can  be  entertained  that 
Judge  Wilson,  means  to  evade  a  legal  inquiry  into  the  founda- 
tion of  this  suit. 

The  idea  that  when  a  cause  is  removed  by  habeas  corpus,  tho 
court  will  not  inquire  whether  the  cause  of  action  warrants  the 
holding  to  special  bail,'  so  far  as  it  is  applied  to  this  case,  rests 
upon  a  misconstruction  of  a  dictum  of  Holt.  The  case  of  Page 
v.  Price,  to  which  Highmore  refers,  is  reported,  (1  Salkeld  98) 
and  the  meaning  intended  to  be  conveyed  is,  that  tho  court  will 
not  under  such  circumstances,  look  into  the  merits  of  tho  caso 
to  ascertain  whether  it  was  properly  bailable  or  not;  but  it  does 
not  prove  that  when  the  motion  is  founded  upon  a  circumstance, 
dehors  the  cause  of  action;  that  this  fact  would  not  be  inquired 
into.  Indeed  tho  exception  which  is  made  in  favor  of  an  exec- 
utor, warrants  tho  drawing  of  this  distinction. 

In  Lumley  v.  Quarry,  1  Salk.  101;  7  Mod.  9,  S.  C.  which 
was  a  subsequent  case,  and  decided  by  the  same  great  judge,  it 
was  held  that  the  superior  court,  would  examine  into  the  cause 
of  action,  even  in  a  case  removed  by  habeas  corpus,  and  that  if 
the  action  was  vexatious,  or  such  as  required  no  bail,  as  an 
action  against  an  executor,  they  would  discharge  upon  common 
bail. 

2.  The  authorities  which  have  been  cited,  prove  no  more 
than  that  when  the  object  of  the  application  is  to  quash  the  suit 
altogether,  it  is  necessary  to  shew,  that  tho  court,  the  officer  of 
which  the  defendant  claims  to  be,  has  jurisdiction  of  the  cause. 
The  privilege  claimed  is  not  a  total  exemption  from  the  opera- 
tion of  the  laws,  it  is  not  a  discharge  of  the  debt,  but  a  judge  of 
another  and  higher  court  asks  of  this,  that  in  the  administration 
of  justice  within  its  walls,  care  be  taken  not  to  stop  the  proceed- 
ings in  other  judicial  tribunals.  For  the  sake  of  argument,  it  is 
conceded  that  the  Circuit  Court  of  tho  United  States,  could  not 
entertain  this  suit,  and  that  there  can  be  no  objection  to  tho  ju- 
risdiction of  this  court;  the  application  is  still  founded  upon  tho 


APRIL  TERM,  1798.  423 

Gratz  v.  Wilson. 

same  principles  as  before.  The  objection  is  not  to  the  jurisdic- 
tion, but  to  the  manner  in  which  it  is  exercised. 

3.  The  last  objection  is  so  closely  connected  with  the  former, 
that  by  removing  one,  the  other  is  shewn  to  be  unfounded.  If  the 
defendant  was  to  except  to  the  right  of  this  court  to  adjudicate 
upon  his  case,  it  would  be  highly  proper  that  he  should  plead  his 
privilege ;  and  indeed,  it  could  not  be  legally  taken  advantage  of 
in  any  other  way ;  but  it  would  be  in  the  highest  degree  prepos- 
terous to  try  the  question,  whether  the  defendant  should  be  dis- 
charged on  common  bail  in  any  other  manner  than  by  motion  ? 
It  is  the  uniform  practice  to  examine  questions  of  this  kind  on 
motion,  and  when  privilege  is  claimed,  any  other  mode  would  be 
so  encumbered  by  difficulties  and  delays  as  effectually  to  defeat 
the  salutary  provisions  of  the  law  by  which  it  was  allowed. 

In  this  country,  where  the  federal  and  state  courts  move  in 
different  orbits,  and  exercise  various  powers,  it  is  highly  incum- 
bent upon  both,  to  extend  these  beneficial  principles  and  honorary 
attentions  as  far  as  possible ;  and  while  the  interests  of  individ- 
uals are  sedulously  guarded,  to  allow  to  the  judges  of  the  United 
States'  courts  those  privileges  which  have  never  been  denied  to 
the  most  humble  state  tribunals. 

Curia  advisare  vult. 

KINSEY  C.  J.  and  SMITH  J.  who  were,  alone,  present  at  the 
argument  in  November,  differing  in  opinion,  and  BOTTDINOT  J. 
having  been  since  appointed  to  a  seat  on  the  bench,  the  motion 
was  argued  again  at  this  term  by  Griffith  and  R.  Stockton,  for 
the  rule,  and  Aaron  Ogden,  against  it,  before  all  the  judges. 

For  the  defendant.  It  is  admitted  that  both  parties  are  citizens 
of  the  same  state,  and  that  the  defendant  is  likewise  one  of  the 
associate  judges  of  the  Supreme  Court  of  the  United  States  ;  and 
was  about  proceeding  to  the  state  of  Georgia,  where  he  was  to 
hold  a  Circuit  Court,  at  a  period  about  thirty  days  subsequent 
to  the  time  of  his  arrest. 

Under  these  circumstances  it  is  contended,  that  he  was  enti- 
tled to  be  discharged  on  filing  common  bail.  The  rule  of  the 
common  law  is,  that  an  attorney  or  other  officer,  whose  attend- 
ance is  required  in  the  court  to  which  he  belongs,  shall  not  be 
holden  to  special  bail.  1  Bac.  Abr.  331.  This  privilege  arises 


424  NEW  JERSEY  SUPEEME  COURT. 

Gratz  v.  Wilson. 

from  a  supposition  of  law,  that  the  business  of  the  court,  or  their 
clients  would  suffer  from  their  being  drawn  away.  5  Bac.  Abr. 
613.  1  Tidd's  Prac.  171.  In  Redman's  case,  1  Mod.  10,  Kelynge 
cites  Wolly's  case,  where  the  court  discharged  defendant  on 
account  of  his  privilege  on  common  bail.  It  is  a  privilege  of  the 
court  to  which  he  belongs,  or  of  the  public,  and  is  not  allowed 
that  they  may  attend  to  their  private  business.  Poordage's  case, 
Ibid  22.  And  whenever  the  public  would  suffer  inconvenience 
it  is  allowed,  as  where  an  alderman  is  elected  a  constable,  as  in 
Abdy's  case,  Cro.  Car.  585.  It  does  not  extend  to  discharge  from 
the  action,  but  merely  to  liberate  from  arrest.  Wheeler's  case,  1 
Wils.  298.  It  is  the  court  of  which  he  is  an  officer,  whose  priv- 
ilege is  claimed ;  (Mayor  of  Norwich  v.  Berry,  4  Burr.  2109)  and 
therefore  he  is  not  permitted  to  waive  it.  Gardner  v.  Jessop,  2 
Wils.  42.  It  extends  to  all  the  members  of  the  court,  from  the 
Chief  Justice  down  to  the  tipstaff.  Gerard' s  case,  2  Bl.  Rep. 
1123-5.  The  case  of  Mayor  of  Norwich  v.  Berry,  shew  also,  that 
the  court  of  B.  R.  will  protect  the  officers  of  C.  B. 

On  the  former  argument  it  was  contended,  that  this  privilege 
never  was  allowed  when  a  cause  was  removed  by  habeas  corpus. 
This  idea  is  not  warranted  by  the  case  of  Page  v.  Price,  1  Salk. 
98,  and  is  expressly  negatived  by  that  of  Lumley  \.  Quarry,  1 
Salk.  101.  2  Ld.  Ray.  767.  7  Mod.  9. 

For  the  plaintiff.  A  fundamental  objection  to  this  claim  is 
derived  from  the  circumstance,  that  the  Circuit  Court  of  the 
United  States  had  no  jurisdiction  of  the  subject  matter  in  con- 
troversy. The  suit  is  between  citizens  of  the  same  state,  and 
consequently  it  cannot  be  entertained  by  the  federal  courts. 

Every  exemption  of  this  kind  is  hostile  to  the  spirit  of  our 
government,  and  must  be  construed  strictly.  Unless  the  defend- 
ant brings  himself  within  the  rule,  and  shews  that  he  is  within 
the  privilege,  the  rights  of  the  plaintiff  are  not  to  be  violated. 

The  privilege  now  claimed  must  fall  under  that  class  which 
is  said  to  belong  to  attorneys  and  other  officers  of  a  court.  With 
regard  to  this,  an  important  distinction  exists,  which  may  be 
traced  throughout  all  the  cases  that  have  been  cited.  The  rule  is 
laid  down  correctly  in  1  Bac.  Abr.  305,  whore  it  is  said,  attor- 
neys have  a  privilege  not  to  be  sued  in  any  other  court,  except 
those  in  which  they  are  sworn  and  admitted,  because  of  the  pre- 


APEIL  TERM,  1798.  425 

Gratz  v.  Wilson. 

judice  that  may  accrue  to  the  business  of  those  courts,  in  which 
their  attendance  is  required ;  neither  are  they  to  be  held  to  special 
bail,  because  they  are  obliged  to  attend,  and  therefore  are  pre- 
sumed to  be  always  amenable.  In  the  note  which  is  subjoined, 
it  is  said,  the  attorney  shall  not  have  this  privilege,  unless  there 
be  the  same  remedy  in  his  own  court. 

The  privilege  is  therefore  twofold.  1.  To  be  sued  in  the  court 
to  which  he  belongs.  2.  To  be  admitted  to  common  bail  in  the 
court  where  he  is  presumed  to  be  always  present.  This  is  the 
doctrine  of  Lord  Holt,  also  in  Baker  v.  Svnndon,  3  Salk.  283  ;  1 
Ld.  Ray.  399,  who  says,  "privilege  is  either  of  court  or  of  pro- 
cess, as  in  the  Court  of  Common  Pleas,  every  person  who  belongs 
to  that  court  as  attorneys,  &c.  shall  have  the  privilege  of  being 
sued,  and  this  is  the  privilege  of  the  court :  but  none  shall  be 
allowed  the  privilege  of  process,  but  those  who  are  officers  of 
the  court,  and  are  supposed  to  be  always  attending  there."  In 
this  manner  all  the  cases  however  seemingly  con  trad  ictorjr,  may 
be  reconciled.  No  one  instance  has  been  adduced,  where  the 
former  privilege  was  allowed,  except  where  the  court  to  which 
the  defendant  belonged,  had  jurisdiction ;  and  no  instance  in 
which  the  latter  kind  was  allowed  to  an  officer  of  a  different 
court. 

KINSEY  C.  J.  When  this  question  was  first  argued,  I  felt  my- 
self under  some  difficulties,  which  more  mature  reflection,  though 
it  has  somewhat  lightened  them,  has  not  altogether  removed. 
It  is  the  duty  of  every  state  court,  and  no  duty  could  more  com- 
pletely coincide  with  my  inclination,  to  support  the  dignity  and 
independence  of  the  federal  courts :  but  it  is  equally  their  duty 
not  to  throw  any  impediment  in  the  way  of  a  creditor,  by  which 
he  may  be  prevented  from  enforcing  his  contract,  or  obtaining 
justice. 

With  regard  to  the  question  before  us,  there  can  be  no  doubt, 
that  the  officers  of  the  four  great  courts  in  England,  from  the 
attorney  to  the  chief  justice,  have  a  right  to  be  sued  in  their  own 
courts,  where  their  attendance  is  necessary,  provided  a  remedy 
can  be  there  attained.  2  BL  Rep.  1125.  There  can  be  no  doubt, 
further,  that  this  privilege  is  extended  so  far  as  to  protect  them 
from  arrest,  and  to  entitle  them  to  a  discharge,  if  arrested. 

I  am  equally  satisfied  that  this  discharge  may  be  claimed  in 


426  NEW  JERSEY  SUPREME  COURT. 

Gratz  v.  Wilson. 

their  own  court,  or  in  any  other  out  of  which  the  writ  is  issued; 
the  only  distinction  which  appears  to  exist,  being,  that  the  court 
to  which  the  party  belongs  takes  notice  of  the  facts  upon  which 
the  claim  of  privilege  is  founded,  but  a  foreign  court  requires 
proof  of  them  to  be  made, 

In  Pitt's  case,  which  has  been  cited,  it  was  held,  that  the  privi- 
lege might  be  claimed  by  motion,  without  the  necessity  for 
pleading  it,  notwithstanding  some  precedents  to  the  contrary; 
and  the  doctrine  is  recognized  by  Lord  Kenyon,  in  Bartlett  v. 
Hebbes,  5  Term  Hep.  686,  whenever  the  facts  are  not  contro- 
verted. In  this  state,  this  has  been  the  practice  for  more  than 
fifty  years,  with  regard  to  members  of  the  legislature,  judges, 
and  attorneys. 

After  these  preliminary  observations,  I  come  more  immediately 
to  the  consideration  of  the  question,  whether  a  judge  of  the 
federal  courts  is  entitled  to  the  same  privileges  and  exemptions 
as  are  claimed  and  exercised  by  the  judges  of  the  principal 
English  courts ;  whether  he  is  to  be  held  to  special  bail  or  not  ? 

One  very  important  difference  exists  between  these  tribunals 
and  those  from  the  practice  of  which  the  cases  are  drawn.  Their 
jurisdiction  is  general,  in  some  cases  almost  unlimited,  and  they 
have  enjoyed  their  privileges  from  time  immemorial.  The  courts 
of  the  United  States,  originated  under  the  federal  constitution, 
are  limited  in  their  powers,  which  are  expressly  defined  by  posi- 
tive law.  This  distinction  appears  material,  for,  in  Lord  Ander- 
son's case,  3  Leon.  149,  it  was  said,  that  these  privileges  had 
been  given  to  the  courts  when  originally  created,  and  that  they 
had  been  exercised  from  that  remote  period.  The  word  given 
shews  that  the  foundation  of  this  claim  is  prescription,  which 
presupposes  a  grant  from  the  king,  who  possessed,  and  fre- 
quently exercised  an  authority  of  this  kind. 

The  ground  which  has  been  assumed  at  the  bar  is  founded 
upon  views  of  public  convenience  and  expediency:  in  this  I  can- 
not altogether  acquiesce:  I  feel  a  much  stronger  disposition  to 
coincide  in  the  opinion  of  queen  Elizabeth,  of  whom  Lord  Coke 
remarks,  (1  Inst.  131)  "  that  she  granted  few  or  no  protections, 
and  her  reason  was,  that  he  was  no  fit  subject  to  be  employed  in 
her  service,  that  was  subject  to  other  men's  actions,  lest  she 
might  be  thought  to  delay  justice;"  a  reason  equally  forcible 
when  applied  to  a  claim  of  privilege. 


APEIL  TERM,  1798.  427 

Gratz  v.  Wilson. 

If  there  are  any  considerations  of  a  public  kind  calling  for  the 
extension  of  privileges  to  cases  of  this  description,  they  may  with 
propriety  be  urged  to  the  national  legislature,  who  may  so  mod- 
ify and  regulate  its  exercise  as  to  render  the  federal  judges  inde- 
pendent of  the  opinions  of  state  courts. 

Privilege  is  ever  a  matter  stricti  juris,  and  ought  not,  particu- 
larly one  of  so  odious  a  character,  to  be  extended  by  implication. 
The  convention  who  framed  the  constitution  evidently  had  the 
subject  of  privilege  before  them,  and  have  secured,  so  far  as  they 
appear  to  have  thought  expedient,  the  independence  of  the 
federal  judges.  I  am  of  opinion,  that  we  cannot  stretch  it  in  a 
case  so  doubtful  as  the  present,  when  the  necessary  consequence 
would  be,  to  oust  the  plaintiff  of  a  plain  and  unquestionable 
right.  My  opinion,  therefore,  is  tn^  ^ae  defendant  take  nothing 
by  his  motion. 

SMITH  J.  I  regret  much  the  necessity  which  compels  me  to 
differ  from  the  opinion  which  has  just  been  delivered,  which,  as 
I  understand,  is  likewise  the  opinion  of  the  majority  of  my 
brethren;  but  the  perfect  conviction  which  I  entertain  in  my 
own  mind,  with  regard  to  the  propriety  of  the  present  applica- 
tion, compels  me  to  express  my  dissent. 

The  general  rule,  that  judicial  officers  are  not  subject  to  arrest, 
either  in  their  own  or  other  courts,  is  undisputed,  and  the  reason, 
upon  which  it  is  founded  is  equally  clear.  It  is  neither  derived 
from  an  express  grant,  nor  dependent  upon  any  statute,  but  has 
its  foundation  in  the  common  law,  the  fundamental  maxim  of 
which  is,  to  prefer  the  interest  of  the  community  to  private  con- 
venience; and  as  there  is  no  positive  statute  which  deprives  the 
judges  of  the  federal  courts  of  Jthe  benefit  of  this  exemption,  I 
am  of  opinion,  that  it  remains  to  them  in  full  force,  as  recognized 
in  the  books  of  common  law,  and  sanctioned  by  considerations 
of  public  policy. 

I  conceive  exemption  from  arrest  on  civil  process,  to  answer, 
&c.  as  incidental  to  the  office  of  judge,  and  attached  to  him  on 
his  appointment.  The  office  is  one  which  cannot  be  executed  by 
deputy,  and  the  interests  of  the  community  would  suffer,  and 
might  be  sacrificed  by  private  wickedness,  if  they  were  not  thus 
privileged. 

It  has  been  urged,  that  there  is  no  positive  law  by  which  this 


428  NEW  JERSEY  SUPREME  COURT. 

Grata  v.  Wilson. 

exemption  is  extended  to  the  judges  of  the  federal  court;  nor,  I 
may  answer,  is  there  any  positive  exemption  in  any  case;  it  is 
implied  in  the  very  appointment  as  judge,  in  the  delegation  of 
judicial  authority,  that  they  are  to  be  clothed  with  all  the 
powers,  and  vested  with  all  the  privileges,  which  are  attached  to 
the  office,  and  essential  to  the  exercise  of  its  duties.'  It  would 
scarcely  be  contended,  that  an  arrest  of  this  kind  might  be  made 
while  the  judge  was  actually  presiding  in  his  couft,  and  admin- 
istering justice  from  his  own  bench;  and  yet  it  would  be  difficult 
to  shew,  even  in  that  case,  any  positive  prohibition. 

The  case  has  been  called  a  new  one;  I  must  confess  I  cannot 
perceive  the  propriety  of  the  phrase:  the  instance  is  novel,  but 
the  principle  involved  is  as  ancient  as  the  common  law.  I  think 
the  case  clearly  within  the  M,.jient  and  acknowledged  principle, 
and,  as  the  application  is  only  for  a  discharge  on  common  bail, 
I  think  the  rule  ought  to  be  made  absolute. 

KIRKPATRICK  J.  In  deciding  this  question,  I  lay  out  of  view 
two  circumstances  which  have  been  urged  on  the  argument,  con- 
sidering them  as  wholly  unconnected  with  the  principle  upon 
which  the  decision  is  to  be  made:  first,  that  no  affidavit  of  the 
existence  of  a  debt  was  made  previous  to  the  arrest;  second,  that 
Judge  Wilson  was  under  appointment  to  attend  the  Circuit 
Court,  in  the  state  of  Georgia.  I  also  deem  it  unnecessary  to 
express  an  opinion  upon  another  question  which  has  been  raised, 
i  iz.  whether  it  is  proper  and  consistent  with  the  rules  of-practico 
to  examine  into  the  propriety  of  admitting  to  bail  on  a  habeas 
corpus  f  Independent  of  these  collateral  questions,  I  am  against 
the  motion  on  the  merits.  The  case  is  this:  the  plaintiff  and 
defendant  are  both  citizens  of  .the  state  of  Pennsylvania;  the 
defendant,  at  the  time  of  the  arrest,  was  residing  in  this  state, 
where  he  had  been  for  some  weeks,  and  was,  at  the  same  time,  one 
of  the  associate  judges  of  the  Supreme  Court  of  the  United  States. 
It  has  been  contended,  that  he  is  entitled  to  his  discharge  on 
account  of  his  privilege  as  officer;  but  no  statute,  no  case,  nor 
any  constitutional  argument  of  clear  and  precise  application  has 
been  laid  before  the  court.  With  regard  to  the  authorities  that 
have  been  cited,  they  are  not  strictly  analogous: — 1st.  They 
prove  that  a  court  will  protect  its  own  officers;  that  is  absolutely 
necessary,  and  the  law  is  unquestioned,  but  it  is  not  the  caso 


APEIL  TERM,  1798.  429 

Hoffman  v.  Brown. 

before  us.  2d.  They  shew  that  if  an  officer  of  one  court  is  sued 
in  another,  he  may  apply  to  be  discharged,  but  this  must  be  in, 
toto,  and  not  on  common  bail.  This  however,  it  has  been  shewn, 
will  not  be  allowed,  unless  the  plaintiff  can  have  a  remedy 
equally  efficacious  in  the  court  to  which  the  defendant  belongs. 
It  has  not  been  contended,  that  the  federal  court,  of  which  Judge 
Wilson  is  an  officer,  can  entertain  this  suit  between  the  present 
parties,  they  being  citizens  of  the  same  state.  This  being  the 
case,  and  it  has  been  so  conceded,  I  am  clear  there  can  be  no 
discharge  from  the  jurisdiction  of  this  court. 

As  to  the  cases  of  peers,  members  of  the  legislature,  &c.  they 
stand  upon  ground  altogether  different,  and  it  is  sufficient  to  say, 
this  is  not  a  case  of  that  kind.  Arguments  have  been  laid  before 
us,  drawn  from  general  views  of  policy,  public  utility  and  conven- 
ience ;  but  these  cannot  serve  as  the  foundation  of  an  introduction, 
by  the  judiciary,  of  a  new  rule.  Where  but  little  doubt  remains, 
suggestions  of  this  kind  are  proper  and  weighty,  but  they  will 
not  authorize  us  to  discharge  this  defendant,  unless  he  has  a 
right  to  be  discharged  by  law.  The  same  argument  would 
apply  in  numerous  instances,  to  which  the  rule  was  never  pre- 
sumed to  extend,  and  if  acted  upon,  would  probably  lead  us 
farther  than  can  now  be  distinctly  foreseen.  I  am  therefore  of 
opinion,  that  the  defendant  take  nothing  by  his  motion. 

BOUDINOT  J.  I  acquiesce  in  the  opinion  of  a  majority  of  my 
brethren,  to  overrule  this  application,  on  the  ground,  that  the 
plaintiff  cannot  have  a  remedy  against  Judge  Wilson,  in  the 
federal  court.  Were  this  difficulty  removed,  however,  I  should 
entertain  a  different  opinion,  and  think  the  defendant  entitled 
to  be  discharged. 

Rule  refused. 


HOFFMAN  against  BROWN. 

A  covenant,  that  a  bond  Bhall  not  be  prosecuted  until  the  happening  of  a 
certain  event,  cannot  be  pleaded  in  bar  to  an  action  on  the  bond  brought  before 
the  time,  but  a  special  action  may  be  brought  and  damages  recovered  for  the 
breach  of  the  covenant. 

This  was  an  action  of  debt,  and  on  a  case  stated  for  the 
opinion  of  the  court,  it  appeared,  that  Brown,  the  defendant,  on 
the  22d  of  August,  1795,  entered  into  a  bond  to  Hoffman,  iii 


430  NEW  JERSEY  SUPREME  COURT. 

Hoffman  v.  Brown. 

the  penalty  of  $400,  with  a  condition  in  the  usual  form,  to  pay 
$200  in  one  year  after  date.  In  an  action  brought  upon  this 
bond,  the  defendant  pleaded,  that  on  the  same  day  Hoffman 
became  bound  to  him,  in  a  bond  for  the  payment  of  $400,  with 
a  special  condition  annexed,  which  reciting  among  other  things, 
that  Hoffman,  had  obtained  letters  of  guardianship  for  one 
Joseph  Kelly,  an  infant ;  he,  together  with  Brown,  as  his  surety, 
had  jointly  entered  into  a  bond  in  the  surrogate's  office,  condi- 
tioned for  the  maintenance  and  education  of  the  said  infant: 
that  in  consequence  of  this  suretyship,  and  in  order  to  indemnify 
Brown,  it  was  agreed  between  them,  that  Hoffman  should  not 
prosecute  on  the  bond  first  mentioned,  until  Kelly  died,  or  came 
of  age;  it  being  the  intention  of  the  parties,  that  Brown,  should 
not  be  compelled  to  pay  the  debt,  until  it  was  ascertained 
whether  or  not  he  was  to  become  liable  as  surety.  The  plea, 
after  stating  these  circumstances,  and  setting  out  the  condition 
at  length,  contained  an  averment,  that  Kelly  was  still  an  infant 
under  age,  and  in  full  health. 

At  Cumberland  Nisi  Prius,  the  plea  was  withdrawn,  and  a 
judgment  confessed  to  the  plaintiff,  subject  to  the  opinion  of  the 
court  on  a  case  stated,  containing  the  foregoing  fact.  It  was 
argued  by 

Giles  and  Griffith,  for  the  plaintiff.  The  bond  to  Hoffman,  was 
absolute  on  the  non-payment  of  the  $200,  within  the  year:  the 
facts  stated  in  the  plea  do  not  amount  to  a  defeasance,  to  pay- 
ment or  an  offset,  but  merely  an  agreement,  that  the  bond  is  not 
to  be  sued  until  the  happening  of  a  certain  contingency.  The 
law  is  clearly  settled,  that  a  covenant  not  to  sue  within  a  speci- 
fied time,  cannot  be  pleaded  in  bar  to  an  action  on  the  bond,  but 
damages  may  be  recovered  for  the  breach  of  the  agreement. 
Deux  v.  Jefferces,  Cro.  El.  352.  Carthew  63.  5  Sac.  Abr.  683. 

Woodruff  (attorney-general)  and  Davenport,  contra. 

Per  curiam.    It  is  a  clear  case  for  the  plaintiff;  the  law  has 
been  long  settled. 
Judgment  for  plaintiff.* 

CITID  IN  Lippincott  v.  Tilton,  2  Or.  361. 

*  Upon  this  point.  Bee  Bac.  Abr.  Release  pi.  17.  18  Vin.  Abr.  312.  2  Salk. 
573.  Show.  46.  12  Mod.  551.  \Ld.Ray.\2Q.  Comb.  123.  Ouyler  v.  Cuyler,  2 
John.  186.  4  Sin.  274,  arguendo. 


APRIL  TEEM,  1798.  431 

Scott  v.  Stackhouse. 

DEN  against  FERIN 

IS  EJECTMENT. 

Where  there  has  been  a  judgment  in  ejectment  by  default,  on  which  a  hab. 
fac.  pass,  has  issued,  the  court  will,  on  affidavit  of  a  real  defence,  open  the 
judgment  on  payment  of  costs,  but  will  not  set  aside  the  execution,  or  order 
restitution. 

The  attorney  for  the  plaintiff,  had  signed  judgment  by  default, 
in  November  Term  last,  against  the  casual  ejector,  and  issued  a 
habere  facias  possessionem,  in  the  vacation,  which  was  executed. 

Griffith,  for  the  tenant,  moved  to  set  aside  the  judgment,  upon 
an  affidavit  of  the  attorney  of  the  tenant  in  possession,  which 
stated  that  there  was  a  fair  defence  to  the  action,  and  that  he 
was  ready  to  enter  into  the  common  rule  and  file  his  plea  instanter. 

Per  curiam.  As  a  trial  has  not  been  lost,  the  affidavit  is  suffi- 
cient to  entitle  the  tenant  to  defend.  Judgment  ought  to  be  set 
aside,  on  payment  of  costs,  but  it  would  be  transcending  our 
powers  to  set  aside  the  habere  facias  possessionem,  or  to  make  any 
order  for  the  restitution  of  the  premises. 

Judgment  opened. 

CITED  IK  Alderman  v.  Diament,  2  Hal.  199.    Den,  Sheppard  v. ,  2  Hal.  161. 


SCOTT  against  gTACKHOUSE. 

ON  CERTIORABI. 

It  is  no  answer  to  a  plea  of  the  statute  of  limitations,  that  the  defendant  baa 
been  discharged  under  an  insolvent  law. 

Per  curiam.  The  question  in  this  case,  is,  whether  a  person 
discharged  under  an  insolvent  law,  can  plead  the  statute  of  limi- 
tations to  a  debt  due  before? 

I  am  not  disposed  to  encourage  a  plea  of  this  nature,  when 
there  is  no  pretence  that  the  money  has  been  paid,  but  the  statute 
does  not  contain  any  exceptions  of  this  kind,  and  we  cannot  make 
them.  The  plaintiff  might  at  any  time  have  prosecuted  for  hia 
debt  and  obtained  judgment.  Hartwell  v.Vere,  2  Bl.  Rep.  1307. 

CITED  iw  Bruce  v.  Flagg,  1  Dutch,  224. 


432  NEW  JERSEY  SUPREME  COURT. 


Cowell  v.  Oxford.       ' 


[MAY  TERM,  1798.] 

COWELL  against  OXFORD,  executor. 

Before  a  legatee  can  sue  an  executor  for  a  legacy,  a  refunding  bond  must  be 
filed,  even  though  the  accounts  of  the  executor  are  settled,  and  a  sufficiency  of 
assets  appears. 

Advantage  must  be  taken  of  the  non-filing  of  the  refunding  bond,  by  a  plea 
in  abatement. 
i 

This  was  an  action  of  debt,  to  recover  the  amount  of  a  legacy, 
which  had  been  bequeathed  to  the  plaintiff,  by  the  testator  of 
the  defendant. 

Johnson,  for  defendant,  obtained  a  rule  to  shew  cause,  why  tht 
suit  should  not  be  quashed,  on  the  ground  that  no  refunding  bondi 
had  been  filed  previous  to  the  commencement  of  the  suit,  as  is  re 
quired  by  the  act  of  assembly,  of  March  llth,  1774.  Allinson,  442 

Johnson.  By  the  3d  section  of  the  act  in  question,  it  is  enacted, 
"that  no  suit  shall  be  maintained  for  any  legacy  or  bequest,  until 
reasonable  demand  made  of  the  executor  or  executors,  who  oughl 
to  pay  the  same,  and  an  offer  made  of  two  sufficient  securities, 
who  shall  become  bound  in  double  the  sum  of  said  legacies,  that 
if  any  part  or  the  whole  shall  appear  to  be  wanting  to  discharge 
any  debt  or  debts,  &c.  he  shall  refund,"  "otherwise  the  process 
shall  abate." 

JJeake,  contra.  The  fact  is  admitted,  that  no  refunding  bonds 
were  filed  previous  to  the  commencement  of  the  suit,  but  it  is 
contended,  that  under  a  liberal  construction  of  the  act,  they  were 
unnecessary.  The  object  of  the  law  was  to  provide  a  security  to 
the  executor,  who  might  be  called  upon  to  pay  legacies  before 
the  amount  of  the  debts  and  claims  could  be  ascertained.  But  in 
this  case  the  accounts  of  the  executor  have  already  been  legally 
settled,  the  debts  and  legacies  are  ascertained,  and  a  sufficiency 
of  assets  appears.  The  offer  of  a  refunding  bond  would  have 
been  wholly  nugatory,  and  ought  not  to  be  insisted  on. 

KINSEY  C.  J.  This  case  seems  to  turn  on  these  two  questions — 
1.  Whether  a  refunding  bond  ought  to  have  been  filed  previous 
to  the  institution  of  this  suit? 

2.  Whether  if  the  omission  to  file  the  bond  bo  fatal,  it  can  bo 
taken  advantage  of  by  a  motion  to  quash  the  proceedings  ? 


MAY  TERM,  1798.  433 


Cowell  v.  Oxford. 


On  the  first  of  these  questions,  I  can  entertain  no  doubt,  but 
that  under  the  act  of  assembly,  refunding  bonds  ought  to  be  filed 
previous  to  the  commencement  of  an  action  for  a  legacy. 

I  cannot  think  that  the  epithet,  rigorous,  is  properly  applied 
to  this  provision  of  the  legislature.  It  is  an  equitable  provision, 
calculated  and  designed  to  secure  an  executor  against  debts  of 
the  existence  of  which  he  may  be  ignorant,  and  by  which  he 
might  be  involved  in  difficulty;  neither  can  I  see  the  propriety 
of  the  distinction,  which  it  has  been  attempted  to  draw  between 
an  estate,  the  accounts  of  which  have  been  settled  before  the 
Orphans'  Court,  and*  one  that  has  not.  A  settlement  of  this 
kind  is  not  conclusive;  it  will  not  discharge  an  executor  from 
the  claims  of  a  creditor  of  the  estate,  nor  will  it  make  any  differ- 
efbce  in  the  legal  appropriation  of  the  assets,  f  am  therefore  of 
opinion,  that  the  case  is  clearly  within  the  language  and  spirit 
of  the  act,  and  that  it  was  essential  to  a  recovery  in  this  action, 
that  a  refunding  bond  should  have  been  tendered. 

2.  Is  it  proper  to  take  advantage  of  this  defect  by  motion  ? 

The  section  of  the  law  upon  which  this  entire  case  depends, 
Bays,  that  a  bond  of  this  kind  shall  be  tendered,  and  if  refused 
by  the  executor,  filed  in  court,  or  the  suit  sliall  abate.  This  word 
which  has  been  selected  by  the  legislature,  implies,  as  I  under- 
stand it,  that  the  defect  may  be  pleaded  in  abatement;  it  is  the 
only  mode  in  which  it  can  properly  be  brought  before  the  court: 
the  fact  may  be  denied,  and  if  so,  it  is  necessary  that  an  issue 
should  be  tried,  which  can  only  be  done  upon  a  plea. 

This  right  to  insist  upon  the  refunding  bond,  is  vested  in  the 
executor  for  his  security,  and  may  be  waived  by  him.  If  he 
omits  to  plead  the  defect,  he  may  be  considered  as  waiving  it, 
and  the  court  cannot  be  called  upon  to  determine  the  fact  upon 
motion.  I  am  of  opinion,  therefore,  that  the  rule  be  discharged. 

SMITH  J.  KIRKPATRICK  J.  and  BOUDINOT  J.  concurred. 

Rule  discharged. 

The  plaintiff  then  offered  to  file  the  bond  which  had  been  pro- 
pared,  which  was  done  with  the  consent  of  the  defendant. 

CITED  is  Dillcy  v.  Henry's  Ex.,  1  Dutch.  302. 
VOL.  I.  2  0 


434  NEW  JEESEY  SUPREME  COURT. 


Jessup  v.  Cook. 


[SEPTEMBER  TERM,  1798.] 

JESSUP  against  COOK. 

A  payment  subsequent  to  the  filing  of  the  declaration,  will  not  constitute  a 
ground  of  action. 

One  of  the  two  obligors  in  a  bond,  may  give  in  evidence  in  an  action  against 
the  other,  receipts  endorsed  upon  the  bond,  out  they  will  not  charge  the  defend- 
ant without  other  proof. 

An  account  proved  to  be  in  the  hand-writing  of  one  partner,  is  evidence  to 
go  to  the  jury  in  an  action  between  the  partners,  though  it  is  not  signed. 

A  culpable  neglect  in  one  partner  in  pursuing  the  claims  of  the  concern,  may 
render  him  liable  to  the  other  partner,  for  the  amount  which  has  been  lost  by 
his  neglect;  but  he  is  only  obliged  to  take  the  same  care  of  the  partnership 
business  as  of  his  own. 

Evidence  taken  before  arbitrators,  not  admissible  in  a  court  on  a  trial,  of  the 
Barne  cause,  though  the  witness  be  dead.  • 

In  order  to  entitle  a  party  to  anew  trial,  on  the  ground  of  newly  discovered  evi- 
dence, such  evidence  must  be  important,  and  shew  that  injustice  has  been  done. 

Query.  Whether  are  affidavits  of  jurymen  admitted  to  shew  the  principles 
upon  which  they  founded  their  verdict  ? 

This  was  a  rule  to  shew  cause  why  a  new  trial  should  not  be 
had,  on  the  ground  that  defendant  had  discovered  new  and  im- 
portant evidence  since  the  trial. 

The  case  had  been'  tried  at  Nisi  Prius,  in  Gloucester  county, 
in  June,  1796,  before  KINBEY  C.  J.  and  CHETWOOD  J. 

It  was  an  action  of  indebitatus  assumpsit,  and  the  declaration 
contained  seven  counts.  1.  Indeb.  ass.  for  goods  sold  and  deliv- 
ered. 2.  Quantum  meruit  for  the  same.  3.  A  special  court  which 
elated  that  on  the  15th  of  June,  1784,  in  consideration  that  Jes- 
eup  had  entered  into  an  obligation  to  one  Taylor,  as  security  for 
Cook,  in  the  penalty  of  £392  10s.  conditioned  for  the  payment 
of  £196  5s.  Cook  undertook  to  pay  Jessup  all  the  moneys  which 
he  might  pay  on  this  bond;  and  an  averment  that  he  had  paid 
£196  5s.  and  interest,  on  the  16th  of  June.  4.  Indeb.  ass.  for  £600 
money  lent  and  advanced.  5.  Indeb.  ass.  for  £600  laid  out  and 
.expended.  6.  Insimul  computassent.  1.  Indeb.  ass.  for  money  had 
;and  received. 

The  defendant  pleaded — 1.  Non  assumpsit.     2.  Non  assumpsit, 
.except  as  to  seven  shillings,  and  as  to  that,  payment. 

,For  the  plaintiff,  the  bond  to  Taylor  was  given  in  evidence, 

which  appeared  to  be  in  the  penalty  of  £392  10*.  conditioned 

rfor  the  payment  of  £196  5s.  with  interest,  in  one  year.  The  exe- 

-cution  was  proved  by  one  of  the  subscribing  witnesses.  On  this 


SEPTEMBER  TEEM,  1798.  435 

Jessup  v.  Cook. 

bond,  several  payments  were  endorsed  between  the  date  of  the 
19th  of  Dcember,  1786,  and  one  payment  subsequent,  for  £83, 
being  the  balance  then  due,  dated  1st  May,  1789. 

Leake,  for  defendant,  objected  to  this  evidence,  as  the  receipt 
was  subsequent  to  the  commencement  of  this  action,  and  to  the 
filing  of  the  declaration,  which  was  in  November,  1788.  The 
bond  has  been  admitted  in  evidence,  but  we  are  not  precluded 
from  objecting  to  any  part  of  the  instrument  which  is  not  legal 
testimony.  Johnson  v.  Horker,  1  Dal.  406. 

Evidence  of  a  cause  of  action,  arising  after  the  institution  of 
the  suit,  is  inadmissible.  1  Com.  Dig.  1423,  title  Action  E.  Fos- 
ter v.  Bonner,  Gowp.  454. 

Per  curiam.  The  receipt  in  1789,  no  evidence  to  support  a 
narr.  of  November  Term,  1788 ;  a  payment  subsequent  to  the 
placita  is  not  evidence. 

Leake  objected,  that  Jessup  himself,  being  one  of  the  obligors 
in  the  bond,  he  could  not  offer  receipts  signed  by  the  obligee  to 
charge  the  other  obligor. 

Per  curiam.  The  evidence  is  unquestionably  proper ;  it  cannot 
certainly,  of  itself,  have  the  effect  of  charging  Cook,  and  unless 
the  plaintiff  shews  further,  that  he  executed  this  bond  merely  in 
the  character  of  surety,  and  that  these  payments  were  made  by 
him,  they  will  not  be  of  much  importance  in  this  suit.  The  pos- 
session of  the  bond  is  a  circumstance  of  some  weight,  and  that, 
with  the  receipt,  is  evidence  that  the  bond  has  been  satisfied. 

The  plaintiff,  after  stating  that  Jessup  and  Cook  had  been 
partners;  that  Cook  bought  Taylor  out,  offered  an  account  in 
Cook's  hand-writing  at  the  dissolution  of  their  connexion,  stat- 
ing himself  indebted  £314  6s. 

Leake  objected  to  the  account.  This  is  an  action  of  indebita- 
tus  assumpsit,  and  it  is  improper  to  go  into  an  examination  of 
partnership  accounts.  The  proper  remedy  in  cases  between 
partners,  is  by  action  of  account  render,  which  though  much  dis- 
used in  England,  is  still  the  only  common  law  remedy.  James 
v.  Browne,  1  Dal.  Co.  Lit.  172,  a.  The  account  is  not  settled 
between  the  parties;  it  is  the  act  of  one  of  them  alone,  and 
though  assumpsit  may  be  supported  upon  an  account  which  has 


436  NEW  JERSEY  SUPREME  COURT. 

Jessup  v.  Cook. 

been  struck,  (Foster  v  Allanson,  2  Term  Rep.  479)  yet  this  case  is 
wholly  different.  Here  the  different  subjects  of  this  suit  are,  for 
the  first  time,  brought  together  by  the  plaintiff  himself,  and  only 
in  his  declaration :  the  defendant  has  not  committed  himself  so 
far  as  to  warrant  an  action  of  assumpsit. 

Per  curiam.  The  question  is,  whether  this  account  shall  go  to 
the  jury,  as  evidence  likely  to  throw  light  upon  the  case?  not, 
what  inferences  they  may  legitimately  draw  from  it.  Nothing 
further  can  be  requisite  to  ensure  a  proper  decision  of  this  ques- 
tion than  a  plain  statement  of  the  fact  which  it  involves,  and  of 
the  truth  of  which  there  seems  to  be  no  sort  of  question. 

Two  persons  become  connected  as  partners  in  business,  and, 
after  some  time  the  partnership  is  dissolved.  One  of  the  parties 
draws  out  the  account  of  the  sales  and  different  matters  of  busi- 
ness, and  states  a  balance  against  himself:  unquestionably  in  a 
case  where  both  have  authority  to  receive,  and  did  receive, 
where  the  transactions  are  in  a  great  measure  secret,  and  known 
only  to  themselves,  this  is  evidence  to  go  to  a  jury,  and  tends  to 
shew  that  this  is  the  true  situation  of  the  accounts  between 
them,  at  least  as  against  the  person  who  has  stated  it,  and  that 
he  is  indebted  to  this  amount  to  the  concern. 

It  is  objected,  that  this  account  is  not  a  stated  account,  because 
not  signed  by  both.  Signing  is,  we  think,  not  essential,  in  every 
case,  to  make  it  a  stated  account.  As  this  paper  now  stands,  in 
the  hand-writing  of  the  defendant,  we  think  it  evidence  on  the 
count  for  money  had  and  received,  or  money  paid,  laid  out,  and 
expended,  or  insimul  computassent.* 

With  regard  to  the  objection,  that  the  action  should  have  been 
account  render,  it  may  bo  observed,  that  this  is  not  a  time  nor 
a  manner  to  take  advantage  of  a  defect  of  this  kind,  if  it  really 
be  one.  But  the  action  of  account  render  is  tedious  and  expen- 
sive: the  same  ends  may  be  attained  in  a  court  of  chancery, 
where  the  accounts  are  so  involved  and  complex  as  to  be  unfit 
for  the  examination  of  a  jury,  and  whenever  they  are  plain  and 
intelligible  I  should  bo  disposed  to  favor  this  mode  of  settling 
differences.  The  action  of  account  render  has  almost  become 
obsolete  in  England  ;  the  forms  are  intricate,  and  the  books  of 
practice  throw  so  little  light  upon  the  manner  of  conducting  it, 

*See  this  principle  decided  in  2  Atk.  252;  2  Cain.  JV.  Y.  Rep.  297;  Wait,  on 
Partnerthip  410. 


SEPTEMBEE  TEEM,  1798.  437 

Jessup  v.  Cook. 

that  our  most  experienced  practitioners  would  find  themselves 
involved  in  difficulties  should  they  undertake  to  pursue  this 
remedy.  From  these  causes,  or  from  others,  the  fact  is,  that  I 
have  never  known  an  action  of  account  brought  in  this  state 
during  the  whole  of  my  practice. 

On  the  whole,  we  can  anticipate  no  injurious  consequences  from 
receiving  evidence  of  this  kind,  there  being  little  reason  to  appre- 
hend injury  from  a  partner  stating  an  account  falsely  against  him- 
eelf. 

Evidence  admitted. 

An  attempt  was  made  to  prove  the  plaintiff  responsible  for  £802 
3s.  which  was  charged  in  the  partnership  books  to  one  Clinton. — 
1.  On  the  ground  that  it  was  a  private  account  between  Jessup 
and  Clinton.  2.  That  the  partnership  accounts  and  books,  after 
the  dissolution  of  the  connexion,  remained  in  Jessup's  hands; 
that  he  had  opportunities  of  suing  Clinton,  which  were  neglected, 
and  that  the  debt  was  lost  in  consequence  of  this  omission. 

Per  curiam.  The  first  question  is  one  of  fact,  for  the  considera- 
tion and  decision  of  the  jury.  With  regard  to  the  second,  there 
are  duties  owing  from  one  partner  to  another,  and  neglect  in  their 
performance  may,  in  some  cases,  be  so  far  culpable  as  to  render 
him  who  has  been  neglectful  liable  for  the  consequences  of  it.  If  it 
was  proved,  that  the  plaintiff  had  been  informed  that  Clinton  was 
in  bad  circumstances ;  that  the  partnership  was  in  danger  of  losing 
the  debt,  is  he  to  be  allowed  to  keep  the  books  in  his  possession  for 
near  two  years  without  taking  a  step  to  recover  the  money? 

In  this  case  it  is  proved,  that  Jessup  took  the  books ;  that  ho 
now  has  them,  and  this  is  evidence  to  shew  that  they  have  been 
in  his  possession  during  the  interim.  But  this,  alone,  does  not 
render  him  liable.  There  is  evidence  that  he  actually  exerted 
himself,  and  with  some  effect,  to  recover  the  money ;  that  he 
attached  Clinton's  property,  and  obtained  upwards  of  £70.  Pre- 
vious to  these  steps  being  taken,  there  is  reason  to  believe,  from 
the  evidence,  that  he  entertained  no  suspicions  or  distrust,  and 
on  the  whole,  though  we  think  the  evidence  admissible,  we  are 
far  from  thinking  that  it  establishes  the  fact  which  it  is  designed 
to  prove,  or  that  he  has  taken  less  care  of  the  partnership  con- 
cerns than  a  prudent  man  would  do  of  his  own. 


438  NEW  JERSEY  SUPREME  COURT. 

Jessap  v.  Cook. 

To  prove  the  fact,  that  the  credit  given  to  Clinton  was  given 
by  Jessup  personally,  the  defendant  offered  to  read  the  testi- 
mony of  a  witness  who  had  been  examined  on  a  previous  inves- 
tigation of  the  cause  before  arbitrators,  from  notes  of  his  testi- 
mony taken  by  one  of  the  arbitrators. 

It  was  objected  to  by  the  plaintiff. 

Per  curiam.  The  evidence  is  inadmissible.  The  arbitrators 
were  not  called  upon  to  take  down  the  testimony  of  the  witness, 
and  probably  took  down  only  what  was  necessary  for  illustration. 
They  did  not  constitute  a  court ;  their  authority  was  created  by 
consent,  and  this  consent  never  authorized  them  even  to  admin- 
ister an  oath  to  a  witness.  This  is  the  first  time,  we  believe, 
that  this  kind  of  testimony  was  ever  offered;  and  we  are  not 
disposed  to  establish  a  precedent. 

Evidence  rejected. 

KINSEY  C.  J.  charged  the  jury.  This  is  an  action  of  assumpsit, 
brought  by  one  partner  against  another,  and  the  action  is  founded 
upon  the  fact,  that  on  a  fair  settlement  of  the  accounts  between 
the  parties  a  balance  has  been  found  due  to  the  plaintiff  equal 
to  the  amount  claimed. 

It  may  be  important,  in  adjusting  the  balance  between  the  par- 
ties, to  understand  the  real  legal  doctrine  upon  a  point  that  has 
been  raised.  It  is  contended,  that  the  plaintiff  ought  to  be  an- 
swerable for  the  debt  lost  by  the  insolvency  of  Clinton.  If  it  had 
been  proved  that  Jessup  knew  that  his  circumstances  were  pre- 
carious, and  that  Cook  had  informed  him  of  the  danger,  that  ho 
himself  was  unwilling  to  give  him  further  credit,  and,  that  if  it 
was  done,  Jessup  should  be  personally  responsible,  there  would 
have  been  some  colour  for  the  doctrine  which  has  been  held. 
Nothing  of  this  kind,  however,  has  appeared  in  evidence.  The 
general  rule  of  law  is,  that  a  partner  is  bound  to  take  the  same 
care  of  the  concerns  of  the  partnership  as  of  his  own.  1  Domat. 
157.  Dig.  1,  72.  Cases  have  been  cited  to  shew  what  shall  bo 
deemed  gross  neglect  in  the  mercantile  law,  upon  bills  of  ex- 
change, so  as  to  incur  or  remove  a  responsibility,  but  they  are 
wholly  foreign  to  a  case  of  this  kind  between  parties.  You  are  to 
determine  from  the  circumstances  of  the  case,  and  the  evidence 
that  has  been  laid  before  you.  1.  Whether  the  debt  duo  from 


SEPTEMBER  TERM,  1798.  439 

Jessup  v.  Cook. 

Clinton  was  a  partnership  concern?    2.  Whether  it  was  lost  by 
the  culpable  negligence  of  the  plaintiff? 

Verdict  for  the  plaintiff,  £138  7s  6  l-4d.  and  6d.  costs. 

A  rule  had  been  obtained  by  Leake,  for  defendant,  to  shew  cause 
why  a  new  trial  should  not  be  had,  on  the  ground  that  the  defend- 
ant had  discovered  important  and  new  evidence  since  the  trial. 

The  affidavit  of  one  Blackwood  was  read,  who  stated  a  con- 
versation between  himself  and  Jessup,  in  which  he  understood 
Jessup  to  say,  that  the  credit  given  to  Clinton  was  on  his  own 
account;  that  he,  (not  they,  the  partners)  expected  to  receive 
the  amount  from  Clinton. 

The  affidavit  of  one  of  the  jurymen  was  offered,  stating,  that 
the  jury,  in  making  up  the  verdict,  divided  the  debt  due  from 

Clinton  between  the  partners. 

• 

Stockton  shewed  cause,  and  cited  Palmer  v.  Crowle,  Andrews 
382 ;  Clark  v.  Stevenson,  2  Bl  Rep.  803 ;  Vaise  v.  Delaval,  1  Term 
Hep.  11;  Jackson  v.  Williamson,  2  Term  Rep.  281;  5  Bur.  2667; 
2  Tidd  811,  817,  to  shew,  that  after  a  general  verdict,  the  court 
will  never  receive  the  affidavit  of  a  juryman  to  prove  the 
grounds  upon  which  the  verdict  was  founded,  or  that  the  jury 
was  guilty  of  any  irregularity  or  improper  conduct. 

i-ea/ce,  contra.  The  cases  which  have  been  cited  are  inappli- 
cable :  the  intent  of  the  affidavit  is  not  to  criminate  any  one,  but 
to  shew  the  grounds  upon  which  the  jury  proceeded,  and  then 
to  shew  that  they  were  mistaken.  The  court  will,  under  special 
circumstances,  grant  new  trials  on  the  affidavits  of  the  jurors, 
that  the  verdict  was  taken  contrary  to  their  meaning.  1  Sdlon's 
Prac.  488.  Rex  v.  Simmons,  1  Wils.  329.  In  Cogan  v.  Ebden,  1 
Bur.  383,  Lord  MansfieJd  recommended  the  counsel  to  take  a 
rule  to  shew  cause  why,  upon  the  affidavits  of  some  of  the  jury, 
a  verdict  should  not  be  amended.  This  would  scarcely  have 
been  done,  had  any  doubts  existed  as  to  the  propriety  of  receiv- 
ing the  affidavits  of  jurymen. 

KINSEY  C.  J.  The  affidavit  of  the  juryman,  which  is  offered 
in  this  case,  does  not  go  to  impeach  the  conduct  of  the  jury, 
or  to  shew  that,  as  the  case  actually  stood  before  them,  they 
were  guilty  of  any  impropriety,  nor  to  vary  its  terms  or  opera- 
tion. Its  object  is  to  shew,  that  a  party  at  the  trial  was  precluded 


440  NEW  JERSEY  SUPREME  COURT. 

Jessup  v.  Cook. 

from  the  benefit  of  evidence  which  might  have  made  a  material 
alteration  in  his  case.  I  do  not  think  the  fact  can  bo  got  at  in  any 
other  manner,  and  1  cannot  anticipate  any  evil  consequences  when 
the  question  was  actually  argued  at  the  trial,  and  when  it  is  impos- 
sible for  their  verdict  to  be  as  it  was  upon  any  other  principle. 

SMITH  J.  concurred. 

KIRKPATRICK  J.  and  BOUDINOT  J.  thought  the  evidence  inad- 
missible; and  the  court  being  divided  it  was  not  read.* 

Leake.  From  the  charge  of  his  honour  the  Chief  Justice  at 
the  trial,  the  same  fact  appears,  and  the  question  is,  whether  the 
affidavit  of  Blackwood  is  sufficient  to  authorize  the  court  to  set 
aside  this  verdict? 

It  appears  that  the  jury  actually  thought  that  the  loss  ought 
to  be  equally  apportioned  between  the  two  partners;  this  is 
working  injustice  to  the  defendant,  if,  as  appears  from  tho 
acknowledgments  of  Jessup  himself,  the  debt  was  a  private  one, 
in  which  Cook  had  no  interest. 

In  Broadhead  v.  Marshall,  2  Bl.  Rep.  955,  a  new  trial  was 
granted  on  the  discovery  of  evidence,  which,  at  the  time  of  the 
trial,  was  actually  in  the  possession  of  the  defendant's  attorney, 
he  not  knowing  of  it.  In  Norris  v.  Freeman,  3  Wils.  38,  the  court 
pay,  there  are  many  cases  in  which  new  trials  will  be  granted 
notwithstanding  there  was  evidence  on  both  sides,  as  where  all 
the  light  has  not  been  let  in  at  the  trial,  which  might  and  ought 
to  have  been.  In  Gryle  v.  Gryle,  1  Atk.  176,  the  Lord  Chancel- 
lor says,  that  the  discovery  of  new  matter,  after  making  a 
decree,  furnishes  a  sufficient  ground  for  allowing  a  review, 
though  such  matter  was  in  existence  at  the  time,  if  it  was  not 
known  by  the  party  until  afterwards.  In  the  Countess  of  Gains- 
borough v.  Gifford,  2  P.  Wms.  424,  the  master  of  the  rolls  stated, 
that  if  a  plaintiff  recovers  a  debt  against  defendant,  and  de- 
fendant afterwards  finds  a  receipt  under  the  plaintiff's  own 
hand  for  tho  money  in  question,  the  verdict  will  be  relieved 
against.  The  same  doctrine  is  established  in  Taylor  v.  Sharp, 
3  P.  Wms.  371,  where  the  Lord  Chancellor  considers  tho  dis- 
covery of  new  matter  as  a  sufficient  ground  fora  bill  of  reviews 
Hinde's  Chan.  56-7.  Lord  Hardwicke  (1  Ves.  434,  435)  con- 

*  Sea  1  Pen.  Rep.  389,  where  this  point  ia  thus  ruled. 


SEPTEMBER  TERM,  1798.  441 

Jessup  v.  Cook. 

aiders  it  as  sufficient  to  shew  that  the  new  matter  is  relevant. 
This  is  sanctioned  in  Lewellin  v.  Mackworth,  2  Atk.  40,  which 
shews  that  it  is  not  necessary,  in  a  case  of  this  kind,  that  the 
evidence  should  be  positive  and  certain,  but  merely  such  as  the 
court  may  think  reasonable.  Hinde  57.  The  true  rule,  in  all 
applications  for  new  trials,  is  that  which  is  cited  by  Lord  Mans- 
field, (1  Bur.  395)  as  the  doctrine  established  by  Lord  Parker, 
"doing  justice  to  the  party,  or  attaining  the  justice  of  the  case." 
Again,  the  jury,  in  their  verdict,  went  clearly  without  evidence 
in  one  respect.  They  divided  the  loss  equally  between  the  partners, 
when  there  was  no  proof  that  the  amount  of  their  interests  in  the 
stock  was  the  same.  The  true  rule  in  apportioning  a  loss,  is  to  ascer- 
tain the  respective  shares  of  the  different  persons  interested;  it 
should  be  apportioned  on  the  stock,  not  on  the  partners.  Watson's 
Law  of  Partnership  40.  Paley's  M.  P.  125.  Puff.  1. 5,  c.  8,  fol  278-9. 

Stockton,  contra.  The  evidence  which  is  said  to  have  been 
discovered  since  the  trial,  is  not  sufficient  to  warrant  the  court 
in  setting  aside  a  verdict.  The  materiality  of  the  evidence  ought 
to  go  to  the  whole  case,  and  not  to  be  confined  to  a  particular 
item  of  account,  which  might  or  might  not  have  been  considered. 
The  case  cited  from  Black.  Rep.  is  a  case  of  one  in  which  the 
evidence  discovered  went  to  the  whole  of  the  plaintiff's  claim, 
shewed  that  it  was  founded  in  gross  fraud  or  palpable  mistake. 

In  Norris  v.'  Freeman,  the  jury  found  against  the  opinion  and 
direction  of  the  court,  and  there  were  many  circumstances  in 
that  case  which  seemed  to  call  for  the  interposition  of  the  court, 
by  granting  a  new  trial  to  preserve  the  rights  of  the  party  from 
being  violated.  The  cases  cited  from  the  equity  courts  are  wholly 
inapplicable;  chancery  does  not  proceed  according  to  the  same  • 
rules  which  govern  courts  of  common  law.  2  Atk.  320. 

It  is  always  necessary,  when  an  application  is  made  for  a  new 
trial  on  this  ground,  to  satisfy  the  court,  not  only  that  the  evi- 
dence is  material,  but  that  it  has  been  discovered,  or  come  to  the 
knowledge  of  the  party  since  the  trial.  This  is  a  fact  which  ought 
not  to  rest  in  conjecture  or  inference,  but,  being  a  pre-requisite, 
it  must  be  proved  by  legal  and  unobjectionable  testimony.  The 
party  himself,  in  his  affidavit,  has  stated  this  circumstance,  but 
there  is  no  intimation  of  it  in  the  affidavit  of  Blackwood.  If  the 
fact  is  a  material  one,  and  it  has  always  been  deemed  to  be  all 


442  NEW  JERSEY  SUPREME  COURT. 

Jessop  v.  Cook. 

important,  to  grant  a  now  trial  upon  the  mere  unsupported  evi- 
dence of  the  party  himself,  would  be  to  run  counter  to  the  most 
familiar  principles  of  the  law,  and  open  a  channel  of  fraud,  and 
hold  out  temptations  to  perjury  which  would  lead  to  the  most 
frightful  consequences. 

It  is  further  incumbent  upon  the  party,  to  prove  that  this  evi- 
dence could  not  have  been  discovered  or  procured  at  the  trial, 
by  at  least  ordinary  diligence.  Wherever  the  party  might  have 
been  prepared,  the  court  has  uniformly  rejected  the  application. 
Price  v.  Brown,  1  Sir.  691.  Cooke  v.  Berry,  1  Wila.  98. 

Nor  is  it  believed  that  more  than  a  single  instance  can  be 
found  in  which  a  new  trial  has  been  granted  on  the  discovery  of 
parol  testimony.  All  the  instances  that  have  been  adduced  have 
been  where  some  written  document  had  been  found  which  shewed 
that  manifest  injustice  had  been  done.  The  case  of  Fabritius  v. 
Cook,  3  Bur.  1771,  is  the  only  exception,  and  that  was  one  in 
which  the  whole  case  was  alleged  to  have  been  supported  by 
perjury,  and  the  court,  after  a  very  strict  scrutiny,  granted  a  new 
trial.  Extreme  cases  of  this  kind  ought  never  to  furnish  a  pre- 
cedent, unless  where  all  the  material  circumstances  are  similar. 

This  evidence,  even  if  admitted  to  be  perfectly  true  in  every 
respect,  is  nothing  more  than  the  recollection  of  a  person  who 
felt  no  interest  in  what  was  stated,  and,  of  course,  his  recollec- 
tion must  be  vague  of  a  conversation  which  took  place  at  a  con- 
siderable distance  of  time.  It  does  not  establish  the  fact,  that  a 
mistake  has  actually  been  committed,  but  merely  states  circum- 
stances from  which  this  inference  might  possibly  be  drawn.  If 
new  trials  were  to  be  granted  under  circumstances  of  this  nature, 
supported  by  this  kind  of  evidence,  no  case  would  be  terminated 
by  a  single  verdict. 

KINSEY  C.  J.  The  question  before  the  court  is,  whether  it  has 
been  made  to  appear  that  new  evidence  has  been  discovered 
since  the  trial,  material  in  its  character,  and  shewing  that  injus- 
tice has  been  done  to  the  defendant? 

The  important  considerations,  in  all  cases  of  this  kind  are,  has 
justice  been  done?  and  has  the  party  been  guilty  of  no  negli- 
gence or  omission  from  the  consequences  of  which  ho  is  now 
desirous  of  escaping?  If  these  are  the  real  questions,  I  do  not 
think  that  any  difficulty  can  arise  from  the  circumstance,  that 


SEPTEMBER  TERM,  1798.  443 

Jessup  v.  Cook. 

the  new  evidence,  which  it  is  desired  to  introduce,  is  oral, 
except  so  far  as  regards  the  credibility  of  different  kinds  of  testi- 
mony. If  it  can  be  made  to  appear,  by  parol  evidence,  that  a 
new  trial  ought  to  be  granted,  I  should  not  hesitate  in  allowing 
it,  though  testimony  of  this  kind,  as  it  is  much  more  easily 
fabricated,  ought  to  be  examined  with  more  strictness.  The 
case  of  Fabritius  v.  Cook,  shews  that  there  is  no  foundation  for 
this  distinction. 

What  then  is  the  case  which  the  defendant  has  laid  before  us, 
as  the  ground  of  this  application  ?  He  swears,  that  since  the 
trial,  he  has  discovered  new  and  important  testimony,  and  brings 
forward  a  witness  who  swears,  that  some  years  since  he  had  a 
conversation  with  Jessup,  in  which  the  latter  used  expressions, 
from  which  the  deponent  thinks,  that  the  credit  given  to  Clinton, 
was  a  private  credit,  with  which  Cook  had  no  concern. 

It  appears,  from  my  notes  of  the  trial,  that  this  fact  was 
attempted  to  be  proved;  that  it  was  the  subject  of  inquiry  then  ; 
that  evidence  was  given  to  the  jury  on  the  point;  but  that  the 
fact  was  not  made  out. 

In  the  partnership  books,  the  various  items  of  this  account  are 
charged  to  Clinton,  and  not  to  Jessup :  it  has  appeared,  and  the 
fact  has  been  admitted  in  this  discussion,  that  the  books  were 
kept  by  Cook  himself,  and  no  satisfactory  explanation  has  been 
given  of,  these  circumstances,  so  strong  against  the  fact  now  set 
up  and  relied  on.  Blackwood,  the  witness,  whose  testimony  is 
considered  as  so  important,  does  not  pretend  to  recollect  the 
precise  words  employed  by  Jessup  in  the  conversation  which  ho 
undertakes  to  detail.  He  gives  us  rather  his  recollection  of  the 
substance  of  what  he  heard,  the  impressions  which  he  received 
as  to  its  import,  than  the  language  itself  that  was  used.  It  is 
scarcely  necessary  to  remark  upon  the  vagueness  of  such  testi- 
mony, or  the  extreme  difference  which  may  be  produced  by  the 
variation  of  a  single  word,  or  even  syllable. 

Regarded  in  this  point  of  view,  I  cannot  but  think  that  the 
circumstances  furnished  by  the  defendant  himself,  the  entries 
made  by  him  in  the  books,  are  entitled  to  much  more  credit 
than  the  necessarily  indistinct  recollections  of  a  conversation 
which  had  taken  place  at  a  remote  period,  and  on  a  subject  not 
likely  to  impress  itself  deeply  upon  the  memory.  It  has  not, 
therefore,  been  made  to  appear,  that  a  new  trial  is  necessary  for 


444  NEW  JERSEY  SUPREME  COURT. 

Jesaup  v.  Cook. 

the  attainment  of  justice,  and  I  am  therefore  of  the  opinion  that 
the  defendant  take  nothing  by  his  motion. 

SMITH  J.  and  KIRKPATRICK  J.  concurred  with  the  Chief  Justice. 

BOUDINOT  J.  Some  difficulty  has  occurred  in  this  case,  from 
the  want  of  a  particular  state  or  report  of  the  case,  which  ought 
to  have  been  applied  for  when  the  circumstances  were  fresh  in 
the  recollection  of  the  judges  before  whom  it  was  tried.  It  how- 
ever appears  to  my  satisfaction,  that  the  plaintiff  and  defendant 
were  jointly  concerned  in  a  store,  in  which  Cook  was  the  acting 
partner  and  book-keeper;  that  one  Clinton,  a  shipcarpenter  in 
the  employ  of  Jessup,  contracted,  on  his  own  account,  a  debt  to 
a  considerable  amount  in  the  store;  that  Cook  opened  tho 
account,  and  changed  the  different  articles  which  Clinton  had,  to 
him,  as  the  immediate  debtor  of  the  firm,  without  mentioning  tho 
plaintiffs  name,  as  in  any  manner  responsible.  There  was,  in 
addition  to  this,  a  private  account  between  Jessup  and  the  partner- 
ship, in  which  no  entr}r  is  made  of  a  single  article  furnished  to 
Clinton.  At  the  trial  of  tho  cause,  one  of  the  principle  questions 
contested  between  the  parties  was,  upon  whom  the  loss  should 
fall  which  had  been  occasioned  by  the  insolvency  of  Clinton? 
whether  it  should  be  charged  jointly  to  the  concern  ?  or  whether 
it  was  to  be  borne  exclusively  by  tho  plaintiff?  Evidence  was 
adduced  by  both  parties,  and  it  was  settled  by  the  jury.  Since 
the  trial,  tho  defendant  now  insists,  that  he  has  discovered  a  wit- 
ness who  can  throw  more  light  upon  the  question,  by  stating 
what  ho  has  heard  the  plaintiff  himself  state  upon  the  subject, 
and  therefore  he  applies  to  have  the  former  verdict  set  aside. 

I  am  against  this  application,  for  these  reasons — 1.  That  as 
the  defendant  himself  kept  the  books,  and  charged  tho  different 
items  in  the  account  to  Clinton,  as  the  debtor  of  the  partnership, 
I  should  think  it  highly  questionable,  at  least,  whether  upon  a 
trial  before  a  jury,  he  ought  to  bo  permitted  to  come  forward 
with  oral  testimony,  detailing  a  loose  conversation,  and  contra- 
dicting this  higher  evidence  furnished  by  his  own  conduct. 

2.  As  at  the  trial  both  parties  adduced  evidence  to  this  par- 
ticular point,  I  think  it  would  bo  introducing  a  new  rule,  and 
establishing  an  extremely  bad  precedent,  to  set  aside  the  verdict 
and  grant  a  new  trial,  because  one  party  has  since  discovered 


SEPTEMBER  TERM,  1798.  445 

Den  v.  Watkins. 

evidence  which  he  thinks  entitled  to  more  weight  than  any  which 
he  had  produced  at  the  trial.  The  jury  may  very  probably  have 
thought  that  all  parol  testimony  ought  to  be  disregarded,  when 
set  in  opposition  to  the  continued  and  deliberate  acts  of  the  de- 
fendant himself;  and  I  cannot  bring  myself  to  dissent  from  this 
doctrine. 

If  the  law  were  established  according  to  the  views  of  the  de- 
fendant, not  one  verdict  in  ten  would  stand.  Some  corroborating 
evidence  may  always  be  found  or  made,  and,  in  deviating  from 
the  rules  by  which  courts  have  heretofore  been  guided,  the  trial 
by  jury  would  become  the  most  precarious  of  all  trials.  I  am, 
therefore,  against  the  motion. 

Rule  discharged. 

CITED  IN  Den  v.  Geiger,  4  Hal.  240.  Jaques  v.  Hulit,  1  Harr.  38.  Nichols  v. 
Mechanics  Fire  Ins.  Co.,  1  Harr.  410.  Van  Riper  v.  Dundee  Manuf'g 
Co.,  4  Vr.  152. 


DEN  ex  dem.  JOUET  against  WATKINS. 

A  mortgage  deed,  though  not  recorded  within  the  time  prescribed  by  the  act 
of  assembly,  is  admissible  in  evidence;  the  objection  goes  to  its  legal  effect. 
Will  the  interest  in  a  mortgage  pass  by  a  conveyance  of  personal  estate  ?  Query. 

This  was  a  motion  to  set  aside  a  nonsuit,  and  grant  a  new  trial. 

An  action  of  ejectment  had  been  brought  upon  a  deed  of  mort- 
gage, dated  June  1, 1776,  to  secure  a  debt  of  £200,  but  the  mort- 
gage was  not  recorded  until  January  4, 1796.  After  the  execution 
of  the  mortgage  to  Cavalier  Jouet,  the  mortgagee  joined  the 
armies  of  the  enemy,  and  judgment  was  had  against  him  for 
treason  in  January  Term,  1779,  whereby  all  his  property  becanio 
forfeited  to  the  state  of  New  Jersey.  Some  of  this  estate  was 
sold  for  the  benefit  of  the  state,  and  on  the  12th  of  March,  179(5, 
an  act  of  the  legislature  was  passed,  vesting  all  the  residue  and 
remainder  of  the  estate,  which  was  undisposed  of,  in  the  daugh- 
ters of  Jouet,  by  whom  this  action  was  brought  on  the  mortgage 
to  their  father. 

On  the  trial  of  the  cause  at  the  Essex  Nisi  Prius,  in  October, 
1796,  before  SMITH  J.  and  CHETWOOD  J.  the  plaintiff  offered 
in  evidence  the  mortgage  deed  to  C.  Jouet.  The  defendant 
insisted  that  he  was  a  bonafide  purchaser  of  the  estate,  and  that 
the  mortgage  not  being  recorded  pursuant  to  the  directions  of 


446  NEW  JERSEY  SUPREME  COUET. 

Den  v.  Watkina. 

the  act  of  November  14,  1786,  was  void,  and  the  court  being  of 
this  opinion  rejected  the  evidence.  The  plaintiff  in  consequence 
suffered  a  nonsuit,  and  now  moved  the  court  to  take  it  off  and 
grant  a  new  trial. 

I.  H.  Williamson,  A.  Ogden,  and  E.  Stockton,  for  the  plaintiff. 
M.  Williamson,  for  defendant. 

For  the  plaintiff .  The  court  were  wrong  in  refusing  to  permit 
this  evidence  to  go  to  the  jury.  Even  if  the  fact,  that  the  defend- 
ant was  a  bonafide  purchaser,  had  been  proved  beyond  a  doubt,  it 
furnished  no  sufficient  reason  for  rejecting  the  evidence.  Unless 
the  mortgage  was  absolutely  void,  it  ought  to  have  been  admitted ; 
but  upon  the  very  statement  of  the  defendant's  case,  it  might  never- 
theless have  been  perfectly  good.  1.  Against  the  mortgagor  him- 
self. 2.  If  the  defendant  purchased  subsequent  to  the  recording  of 
the  deed.  3.  If  he  was  conusant  of  the  mortgage  at  the  time  of  his 
purchase.  These  were  all  facts,  which  the  plaintiff  had  a  right  to 
demand  should  be  determined  by  a  jury,  and  not  in  a  summary 
manner  by  the  court,  on  a  motion  collateral  to  the  merits  of  the 
case. 

The  object  of  the  act  was  exclusively  to  protect  honest  and 
bonafide  purchasers,  and  resembles  in  some  respects,  the  register- 
ing act  of  7  An.  c.  20,  upon  which  the  same  construction  has  always 
been  given.  In  Cheval  v.  Nichols,  1  Str.  664,  it  was  held,  that  this 
statute  was  designed  to  protect  against  fraudulent  sales,  subject 
to  concealed  prior  incumbrances,  and  therefore  it  did  not  relieve 
against  an  incumbrance,  though  not  registered,  if  it  was  known 
to  the  purchaser.  The  same  doctrine  was  held  in  Doe  v.  Routledge, 
Cowp.  705,  and  by  Lord  Harkwicke,  (3  Atk.  651)  in  the  case  of 
Le  Neve  v.  Le  Neve  The  same  principle  has  been  adopted  in 
this  state,  in  the  construction  of  the  act  of  assembly,  which 
provides  for  the  recording  of  surveys.  Allinson  51.  Note. 

But  there  was  no  necessity  for  the  enrolment  or  recording  of 
this  mortgage  deed.  The  estate  of  Jouet,  the  mortgagee,  became 
vested  in  the  state  in  1779,  and  the  act  in  question  was  not  passed 
until  1786.  Statutes  of  this  kind,  impairing  existing  rights,  and 
prescribing  a  more  limited  line  of  conduct,  do  not  affect  the 
sovereignty  of  the  state,  or  impose  rules  for  its  exercise.  Acts  of 
parliament  are  never  extended  to  persons  or  things  superior  in 


SEPTEMBER  TERM,  1798.  447 


Den  v.  Watkins. 


rank  to  those  which  are  expressly  named.  1  SI.  Com.  88.  .Nor  ia 
the  king,  who  in  that  respect  represents  the  national  sovereignty 
and  dignity,  bound  by  any  act  of  parliament,  unless  named 
therein  by  special  and  particular  words.  Ib.  261.  Wood's  Inst.  21. 
Neither,  under  our  system  of  government,  can  provisions  of  this 
kind  be  held  to  extend  to  the  state.  Allen  v.  Hoyt,  Kirby  227. 

The  plaintiff,  deriving  his  title  from  the  state,  is  vested  with  its 
rights,  and  entitled  to  the  benefit  of  all  its  prerogatives.  The 
act  of  assembly  confirms  to  the  lessor  of  the  plaintiff  all  the  right 
of  the  state  to  the  land  in  question  ;  if,  therefore,  the  defendant, 
at  that  time,  would  not  be  admitted  to  hold  in  opposition  to  the 
title  then  in  the  state,  he  cannot  be  permitted  to  set  up  the  same 
defence  against  us. 

It  may  be  objected,  however,  that  the  legislature  have  only 
granted  to  the  lessor  of  the  plaintiff  the  personal  estate  which 
remained  undisposed  of.  A  mortgage,  however,  is  but  personal 
property.  Powell  on  Mort.  14-15.  It  is  evidence  of  a  debt.  Ib. 
106.  It  goes  to  the  executor  and  administrator.  Ib.  298-9.  2 
Bur.  978.  Green  v.  Hart,  1  John.  580.  The  act,  therefore,  passing 
the  debt,  the  security  is  transferred. 

This  nonsuit  ought  to  be  set  aside  without  costs,  it  having 
been  submitted  to  by  the  plaintiff,  in  consequence  of  an  erroneous 
judgment  of  the  court,  which  destroyed  his  action.  Pochin  v. 
Pawley,  1  BL  Rep.  670.  Buscall  v.  Hogg,  3  Wils.  146. 

For  the  defendant'.  This  action  is  brought  in  the  name  of  the 
original  mortgagee,  C.  Jouet,  for  the  benefit  of  his  daughters,  in 
whom  the  residue  of  the  personal  estate  of  their  father  was 
vested  by  an  act  of  assembly. 

The  recording  act  was  passed  in  1786,  since  which  period  no 
mortgage  is  admissible  in  evidence,  or  can  have  any  legal  opera- 
tion, unless  under  particular  circumstances,  without  it  has  been 
recorded  within  the  time  limited  by  the  act.  The  defendant  is 
not  the  mortgagor,  and  therefore  it  was  incumbent  upon  the 
plaintiff  to  lay  some  ground  for  the  introduction  of  this  evidence, 
to  bring  himself  within  the  exceptions  which  the  act  itself  allows, 
ot  which  have  been  created  by  judicial  construction.  Whether 
he  does  come  within  the  exemptionSj  is  at  this  time  perfectly 
immaterial,  it  is  sufficient  that  it  was  not  made  to  appear  to  the 
court,  at  the  time  the  evidence  was  offered. 


448  NEW  JERSEY  SUPREME  COURT. 

Den  v.  Watkins. 

With  regard,  however,  to  the  grounds  upon  which  this  exemp- 
tion from  the  operation  of  statute  is  claimed,  it  has  been  con- 
tended, that,  as  the  plaintiff  claims  under  the  state,  he  is  entitled 
to  all  the  privileges  which  are  necessarily  connected  with  tho 
sovereignty  of  the  community.  Exemptions  of  this  kind,  always 
odious,  are  particularly  so  in  a  republic,  where  it  is  the  duty  of 
every  ruler  to  bear  constantly  in  mind,  that  he  is  assisting  in  the 
administration  of  a  government  of  laws,  equally  operating  upon 
the  high  and  the  low,  the  magistrate  and  the  citizen.  But  this 
prerogative  is  now  pushed  to  an  extent  beyond  what  was  thought 
reconcileablo  to  the  ideas  of  English  liberty,  during  the  reign  of 
James  I.  at  which  period  the  privilege  was  considered  as  personal 
7  Co.  23—4.  So  far  from  there  being  any  authority  to  warrant  the 
doctrine,  that  a  private  individual,  who  claims  under  tho  king,  it 
entitled  to  all  the  exemptions  and  privileges  annexed  to  theroyai 
person,  it  would  be  more  rational  to  say,  that  when  the  kingderives 
a  title  to  land  from  a  private  person,  and  claims  through  him,  he  is 
so  far  divested  of  his  prerogative,  and  is  considered  as  standing  in 
the  predicament  of  the  person  from  whom  his  rights  are  derived. 

It  is  also  necessary,  whenever  a  claim  is  preferred  for  the  ben- 
efit of  the  king's  prerogative,  that  the  interest  of  the  king  should 
appear  on  the  record.  One  must  sue  nomine  regis,  otherwise  he 
shall  not  avail  himself  of  the  prerogative.  Bro.  Abr.  tit.  Prerog. 
pi  68.  1  P.  Wms.  252-3.  Gilb.  W.  37. 

The  action  of  ejectment  is  a  mixed  action,  and  though  the 
debt  may  bo  personal,  yet  as  the  only  property  transferred  by 
the  act  was  personal,  the  claim  upon  the  real  property  was  not 
included.  It  is  absurd,  at  the  very  time  that  an  action  is  brought 
to  recover  real  estate,  to  say,  that  tho  plaintiff  has  no  right  to 
any  thing  that  is  not  personal.  The  metaphysical  distinctions 
that  may  be  drawn  between  the  substance  and  its  inseparable 
concomitants,  afford  no  rule  by  which  the  decisions  of  a  court  of 
judicature  can  be  governed:  the  fact,  that  under  this  assignment 
an  attempt  is  made  to  claim  real  property,  shews  that  they  con- 
sider it  as  transferring  rights  to  other  than  the  personality. 

In  reply.  It  is  an  established  rule  of  law,  that  every  instru- 
ment under  seal  is  admissible  in  evidence,  provided  it  relates  to 
the  subject  in  controversy,  and  is  one  of  tho  foundations,  or  the 
muniments  of  title  in.  either  of  the  parties.  It  is  a  question  for  the 


SEPTEMBER  TERM,  1798.  449 


Den  v.  Watkins. 


consideration  of  the  court,  what  effect  or  operation  is  to  be  allowed 
it:  this  is  entirely  independent  of  its  admissibility.  6  Mod.  45. 
(See  1  Dal.  64,  69.  1  Bin.  190.  Faulkner  v.  Lessee  of  Eddy.}  On 
this  principle,  the  mortgage  ought  to  have  been  admitted  in  evi- 
dence, unless  the  act  of  assembly  render  it  an  absolute  nullity. 

Independent  of  all  questions  connected  with  royal  prerogative 
and  privilege,  the  case  appears  to  depend  entirely  upon  tho 
meaning  that  is  to  be  given  to  the  recording  act. 

According  to  our  understanding  of  this  act,  it  does  not  in  the 
slightest  degree  bear  upon  the  present  case.  The  legislature 
intended  to  regulate  the  common  dealings  between  man  and 
man.  Instances  were  by  no  means  uncommon  in  which  honest 
purchasers  had  been  deprived  of  their  rights,  or  subsequent 
mortgagees  had  lost  their  debts  in  consequence  of  the  bringing 
forward  either  real  or  fictitious  claims  of  an  earlier  date,  which 
absorbed  all  the  funds  upon  the  faith  of  which  credit  had  been 
given.  It  was  to  guard  against  concealments  of  this  kind,  which 
whether  actually  or  constructively  fraudulent  were  equally  inju- 
rious, that  this  act  was  passed.  Could  it  have  been  presumed 
that  the  government  would  have  committed  actual  fraud,  or  can 
laches  or  inattention,  which,  in  the  case  of  individuals,  amount 
to  legal  fraud,  be  attributed  to  the  state  ?  The  treasurer  of  the 
state  is  not  required  to  record  the  mortgages  that  are  made  to 
him.  Incumbrances  of  this  kind  are  of  so  public  a  nature,  or  so 
few  in  number,  that  any  legislative  provisions  with  regard  to 
them  would  be  altogether  superfluous. 

Per  curiam.  The  evidence  was  admissible  upon  the  authority 
of  the  case  of  Ford  v.  Lord  Erey,  6  Mod.  44.  The  mortgage 
ought  to  have  been  received,  and  if  it  was  rendered  of  no  valid- 
ity by  any  matter  dehors,  such  circumstances  should  have  been 
made  to  appear  to  the  court,  by  way  of  defence  against  the 
claim  set  up  under  it.  In  refusing  to  hear  it,  the  court  then  did 
wrong,  and  a  new  trial  must  be  granted. 

The  court,  in  answer  to  an  inquiry  of  Mr.  Ogden,  intimated 
their  opinion,  that  the  mortgage  was  not  void,  because  it  was 
not  recorded. 

New  trial  granted. 

NOTE. — The  court  do  not  take  any  notice  of  one  question 
which  was  argued,  viz.  whether  the  interest  of  a  mortgagee  in  & 

VOL.  I.  2D 


450  NEW  JEESEY  SUPEEME  COTJET. 

Den  v.  De  Hart. 

mortgage  is  to  be  considered  as  personal  estate,  though  indi- 
rectly they  seem  to  have  decided,  that  it  was  to  be  regarded  in 
that  light.  In  Hassel  v.  Tynte,  Ambl.  318,  Lord  Hardwicke  said, 
that  it  was  a  question  upon  which  he  felt  very  unwilling  to  give 
an  opinion.  His  words  are,  "what  has  been  argued  at  bar  is 
.very  true,  that  the  money  is  the  principal,  and  the  land  only 
the  security :  that  the  money  would  pass  by  will  not  attested 
according  to  the  statute :  and  yet  here  is  an  interest  in  land,  and 
•it  is  a  very  considerable  question,  whether  it  can  pass  by  parol 
gift?"  The  question  was  reserved.'  Fonblanque  b.  3,  c.  1,  s.  13, 
considers  it  as  personal  property,  and  in  the  same  light  it  seems 
to  be  regarded  by  Lord  Mansfield,  in  Martin  v.  Moivlin,  2  Bur. 
969 ;  recognized  in  Green  v.  Hart,  1  John.  583 ;  1  Caine  Ga.  Er. 
69,  Waters  v.  Stewart.  But  see  Noys  v.  Mordaunt,  2  Vern.  581 ; 
Doe  v.  Parratt,  5  Term  Rep.  652,  which  shew,  that  in  certain 
cases  it  is  looked  upon  as  real  property.  See  also  Perry  v.  Bar- 
ker, 13  Ves.  jun.  198,  and  Den  ex  dem.  Jouet  v.  Spinning  Post,  3 
John.  Ch.  Ca.  145.  11  John.  538. 


[NOVEMBER  TERM,  1798.] 


DEN  ex  dem.  LOCKYER  against  DE  HART. 

A  voluntary  conveyance  from  a  father  to  his  children,  without  any  other  con- 
sideration than  natural  affection,  made  at  the  time  he  is  indebted,  is  fraudulent, 
as  against  creditors. 

A  cognovit  actionem,  by  executor,  is  an  admission  of  assets. 

This  was  an  ejectment  for  lands  in  the  county  of  Essex.  At 
the  trial  of  the  cause  at  the  Nisi  Prius  in  April,  1798,  before 
Kirkpatrick  and  Boudinot,  justices,  it  appeared,  that  the  plaintiff 
claimed  under  a  deed  from  Eobert  Little  to  his  daughter  Phoebe 
Lockyer,  for  her  life  remainder  in  fee  to  her  three  children. 
This  deed  was  dated  January  14,  1761.  All  the  children  of  P. 
iLock}-er,  the  grantee  for  life,  are  dead  without  issue,  excepting 
Samuel  Lockyer,  the  lessor  of  the  plaintiff. 

It  appeared  in  evidence,  that  John  Lockyer,  the  husband  of 
Phoebe,  his  wife  and  family,  lived  upon  the  land  in  question  from 
.the  death  of  Little,  for  nine  or  ten  years,  without  any  interrup- 


NOVEMBER  TEEM,  1798.  451 

Den  v.  De  Hart. 

tion  :  at  that  time,  however,  the  defendant  obtained  possession, 
which  he  had  kept  ever  since.  Some  of  the  witnesses  swore, 
that,  even  prior  to  Little's  death,  the  land  was  generally  consid- 
ered as  belonging  to  Phoebe  Lockyer;  but  her  husband  being 
(after  a  release  was  executed)  admitted  as  a  witness,  swore,  that 
at  the  time  of  the  deed  being  made  to  his  wife  and  children  he 
was  totally  ignorant  of  the  circumstance.  One  or  two  of  the 
witnesses  swore,  that  Little  was  generally  believed  to  be  in  good 
circumstances. 

The  defendant  proved,  that  about  two  months  previous  to  the 
execution  of  the  deed  from  Little  to  his  daughter  and  grandchil- 
dren, a  cause  of  action  accrued  against  him  on  a  warranty  deed: 
this  was  the  foundation  of  a  suit,  in  which  the  executor  of  Little 
confessed  judgment  by  cognovit  actionem  to  Mathias  Halsted,  some 
time  in  the  year  1763.  Under  that  judgment,  the  lands  in  ques- 
tion were  taken  in  execution,  and  sold,  by  the  sheriff,  to  Hal- 
sted ;  but  the  deed  from  Hampton,  the  sheriff,  to  Hulsted  was 
not  executed  until  March  25,  1772,  a  short  time,  however,  pre- 
vious to  which  be  had  acquired  possession.  Halsted  conveyed, 
July  12,  L790,  to  the  defendant,  for  the  consideration  of  £85. 

After  argument,  the  court  charged  the  jury — that  the  question 
depended  entirely  upon  the  validity  of  the  deed  from  Little  to 
his  daughter  and  grandchildren,  in  January,  1761.  They  were  to 
consider,  whether  this  was  a  fair  and  bona  fide  transaction?  or, 
whether  its  object  was  fraudulent,  to  prevent  those  who  had  Legal 
claims  upon  his  estate  from  obtaining  justice?  This,  the  court 
said,  was  in  a  measure  a  question  of  fact,  for  the  consideration  of 
the  jury.  The  law,  however,  has  established  some  general  rules 
by  which  the  jury  are  to  measure  the  circumstances  of  the  case. 

1.  It  is  not  a  sufficient  ground  to  pronounce  a  deed  fraudulent, 
that  it  is  voluntary.  It  is  perfect!}-  fair  and  honourable  for  a  man 
to  make  such  a  disposition  of  his  property,  in  favour  of  the  dif- 
ferent members  of  his  family,  when,  by  so  doing,  he  works  no 
injury  to  others. 

2.  But  if  a  man,  with  a  view  to  defraud  a  third  person  of  a 
just  debt,  or  of  the  benefit  of  his  contract  or  covenant,  shall  make 
a  conveyance  of  his  land  to  his  children,  that  it  may  not  be 
liable  to  these  demands  upon  it,  such  a  transaction  is  fraudulent 
and  invalid. 

3.  The  policy  of  the  law  has  carried  these  provisions  in  favour 


452  NEW  JERSEY  SUPREME  COURT. 

Den  v.  De  Hart. 

of  honesty,  and  in  discouragement  of  fraud,  still  further,  and 
holds,  that  if,  without  any  actual  fraud  or  moral  turpitude,  a  man 
undertakes  to  make  a  voluntary  conveyance  of  his  land,  the  opera- 
lion  of  which  must  necessarily  deprive  a  third  person  of  a  just 
debt,  this  conveyance  is  fraudulent  in  the  eye  of  the  law,  and 
void  against  creditors.  It  is  highly  proper  that  a  man  should 
be  just  before  he  is  generous;  that  he  should  pay  his  debts  before 
he  throws  away  his  property. 

In  this  case,  it  is  further  to  bo  remarked,  that  the  defendant 
has  been  in  possession  nearly  twenty-eight  years;  the  title  under 
vrhich  both  parties  claim  has  been  well  known,  at  least  to  tho 
plaintiff,  and  under  such  circumstances  the  title  should  be  per 
fectly  clear,  to  shake  such  a  possession. 

An  objection  has  been  raised  to  the  taking  lands  in  execution 
on  a  judgment  confessed  by  the  executor,  but  in  New  Jersey 
lands  are  assets  for  the  payment  of  debts.* 

Verdict  for  defendant. 

A  motion  had  been  made  to  set  aside  this  verdict,  and  grant  a 
new  trial — 1.  Because  of  the  misdirection  of  the  court.  2. 
Because  the  verdict  was  against  law  and  evidence. 

The  motion  was  argued  at  the  last  September  Term,  by  I.  H. 
Williamson  and  A.  Ogden,  for  the  plaintiff;  and  M.  Williamson 
and  R.  Stockton,  for  the  defendant. 

For  the  plaintiff.  The  question  was  properly  placed  by  the 
judge  at  Nisi  Prius,  upon  the  fact,  whether  the  deed  of  January, 
17G1,  from  Little  to  Mrs.  Lockyer  and  her  children  was  fraud- 
ulent and  void?  After  a  deed  has  been  so  long  executed,  and  its 
validity  remained  so  long  unquestioned,  the  circumstances  ought 
to  bo  very  strong  and  indisputable  to  authorize  the  presumption 
of  fraud.  It  is  not  every  voluntary  deed  that  is  considered  as 
tainted,  and,  independent  of  that  circumstance,  little  has  been, 
or  can  be  urged  against  this  instrument.  In  the  case  of  Cadogan 
v.  Kennett,  Cowp.  432,  Lord  Mansfield  went  into  a  full  investiga- 
tion of  the  law  upon  this  subject,  and  the  liberal  and  wholesome 
doctrines  which  he  established  have  since  been  universally  acqui- 
esced in.  He  expressly  says,  "the  statute  27  Elizabeth  c.  4, 

•This  is  altered  by  the  act  of  18th  February,  1799,  (Pat.  N.  J.  Laws  372) 
•nd  now  no  lands  can  be  sold  or  affected  by  any  judgment  against  executors 
or  administrators. 


NOVEMBER  TERM,  1798.  453 

Den  v.  De  Hart. 

does  not  go  to  voluntary  conveyances,  merely  as  being  voluntary, 
but  to  such  as  are  fraudulent.  A  fair  voluntary  conveyance  may 
be  good  against  creditors,  notwithstanding  its  being  voluntary." 

Why  was  not  this  deed  questioned  at  an  earlier  period,  and  in 
a  legal  manner;  when  all  the  circumstances  were  fresh,  and  the 
evidence,  which  a  knowledge  of  the  characters  of  the  agents  in  the 
transaction  furnishes,  is  strong  and  clear  ?  The  conveyance  was 
properly  executed  and  acknowledged,  before  a  judge  of  the  court, 
though  it  is  now  said  to  have  been  private  and  secret.  John 
Lockyer,  who  now  swears  he  was  ignorant  of  the  circumstance, 
lived  on  the  property  nine  or  ten  years;  he  called  it  his  during 
the  lifetime  of  the  old  man ;  he  forbid  the  sheriff  to  sell  under 
the  execution  in  Halsted's  suit.  Respectable  witnesses  swear, 
that  even  during  the  lifetime  of  Little  the  land  was  considered 
as  belonging  to  Phoebe  Lockyer. 

If  these  circumstances  on  the  part  of  the  plaintiff  rebut  the 
presumption  of  fraud,  they  are  strengthened  by  the  evidence 
which  the  defendant  himself  furnishes.  The  suit  against  Little 
was  never  brought  during  his  life ;  it  was  not  publicly  tried,  but 
judgment  confessed  by  an  executor;  the  ground  of  the  action  is 
now  said  to  be  a  claim  on  a  warranty  deed;  the  judgment  was 
suffered  to  lay  dormant  for  nine  years,  and  the  property  was 
never  sold  until  Halsted  had  actually  got  into  possession. 

But  the  selling  of  this  land  upon  a  judgment  by  confession 
against  an  executor  is  erroneous.  Lands  are  assets  for  the 
payment  of  debts,  it  is  true,  but  they  are  not  to  be  taken  until 
the 'personal  estate  is  exhausted.  There  is  no  pretence  of  there 
being  any  other  claims  upon  the  property :  Little  was  esteemed 
a  man  in  good  circumstances,  and,  where  the  case  rests  so  much 
upon  presumption,  it  is  fair  to  presume,  that  there  was  other 
property  sufficient  to  answer  this  demand. 

This  inference  is  confirmed  by  the  fact,  that  the  executor  con- 
fessed judgment.  If  he  confesses  judgment,  or  suffers  it  to  go  by 
default,  he  admits  assets  in  his  hands,  and  is  estopped  to  say  the 
contrary.  Rock  v.  Leighton,  Salk.  310.  Skelton  v.  Hawling,  1  Wils. 
258.  (See  also  Ewing  v.  Peters,  3  Term  Eep.  685.)  It  cannot  now 
be  presumed,  that  an  executor  would  confess  judgment  without 
having  assets,  and  in  his  own  hands,  for  he  renders  himself 
answerable  for  the  debt.  Although  real  estate,  under  our  law, 
is  assets,  yet  it  is  not  assets  in  the  hands  of  the  executor,  but 


454  NEW  JERSEY  SUPREME  COURT. 

Den  v.  De  Hart. 

it  descends  to  the  heir,  though  subject  there  to  the  debts  of  the 
ancestor.  An  executor  would  not  commit  himself  by  confessing 
judgment,  when  the  assets  were  in  the  hands  of  another,  of  the 
value  of  which  he  must  be  ignorant :  but  if  this  can  be  presumed, 
it  would  be  highly  improper  for  him,  by  confessing  judgment,  to 
fix  the  debt  upon  the  heir,  without  an  opportunity  being  afforded 
him  to  rebut  the  claim. 

In  addition  to  these  circumstances,  a  will  of  Robert  Little, 
dated  about  fourteen  days  previous  to  the  execution  of  this 
deed,  was  given  in  evidence,  in  which  he  makes  precisely  the 
same  disposition  of  this  piece  of  property,  and  directs  his  debts 
to  be  paid  out  of  his  personal  estate. 

The  charge  was  also  erroneous  in  another  respect,  it  stated  a8 
a  circumstance  of  weight,  against  the  lessor  of  the  plaintiff,  that 
the  defendant  had  been  in  possession  for  near  twenty-eight  years. 
This  could  not  affect  the  lessor  of  the  plaintiff,  because  his  title 
had  accrued  within  three  or  four  years,  on  the  death  of  his  mother, 
who  was  tenant  for  life ;  and  it  would  be  contrary  to  justice  that 
the  remainderman  should  be  prejudiced  by  the  omissions  01 
negligences  of  the  owner  of  the  particular  estate. 

For  the  defendant.  All  the  cases  upon  the  statutes  of  Eliza- 
beth shew  that  they  are  to  be  construed  liberally,  for  the  sup- 
pression of  fraud :  and  under  them  the  court  would  have  been 
authorized,  had  they  charged  the  jury,  that  the  single  circum- 
stance of  Little's  being  indebted  at  the  time  of  making  the  deed, 
•was  not  only  a  circumstance  from  which  fraud  might  be  inferred, 
but  was  actually  fraudulent  in  the  eye  of  the  law. 

This  is  the  language  of  the  law,  confirmed  by  the  opinions  of  tho 
ablest  English  chancellors;  and  this  would  preclude  any  examin- 
tion  of  the  circumstances,  which  lead  to  the  suspicion,  not  only 
of  legal  or  technical,  but  of  actual  and  moral  fraud.  If,  however, 
there  be  any  necessity  for  an  inquiry,  whether  the  conveyance 
from  Little  was  executed  under  a  premeditated  and  concerted 
plan,  to  defraud  those  who  had  claims  upon  his  estate,  it,  at  least, 
is  not  a  matter  of  inquiry  here.  It  was  a  question  of  fact,  for  the 
determination  of  the  jury  on  the  trial,  distinctly  submitted  to  their 
investigation  and  decision  by  the  court,  and  their  finding  upon  a 
question  of  fact,  after  evidence  on  both  sides,  is  conclusive. 

It  has  been  contended,  that  the  plea  of  cognovit  actionem  is 


NOVEMBER  TERM,  1798.  455 

Den  v.  De  Hart. 

an  admission  of  assets  in  the  hands  of  the  executor,  but  not  in 
the  hands  of  the  heir.  The  distinction  is  altogether  novel. 
Assets  in  the  hand  of  an  executor,  is  a  legal  expression  which 
never  has  been  presumed,  before  this  occasion,  to  imply  that 
they  must  be  in  his  manual  grasp.  The  phrase  is  common,  and 
its  signification  is  plain ;  it  means,  merely,  that  there  are  assets 
belonging  to  the  estate  of  the  decedent,  with  which  the  judg- 
ment may  be  satisfied.  So  that  they  are  bound  by  the  judgment, 
it  is  perfectly  immaterial  where  they  may  be  located,  or  in  whoso 
immediate  power  they  may  be  situated.  If  an  executor  should 
plead  plene  administravit  at  a  time  when  there  were  real  but  no 
personal  assets,  can  it  admit  of  question  how  the  jury  ought  to 
find  upon  this  issue? 

The  dangers  which  are  apprehended  cannot  be  completely 
guarded  against,  except  by  making  the  heir  a  party  to  a  suit, 
which  can  never  be  done ;  because  there  can  be  no  doubt  that 
on  a  judgment  against  an  executor,  real  property  may  be  taken 
in  execution.  It  belongs  to  the  other  party  to  shew  that  this 
case  is  an  exception. 

An  objection  has  been  made  to  that  part  of  the  charge  of  the 
court,  in  which  he  considers  the  long  possession  by  the  plaintiff, 
as  a  circumstance  of  weight  in  his  favour.  Reference  need  only 
be  had  to  the  facts  of  the  case,  to  shew  that  this  objection  is 
utterly  frivolous.  This  possession  was  not  said  to  constitute  a 
legal  title,  otherwise  the  plaintiff  would  have  been  nonsuited ; 
but  the  jury  were  directed,  that  the  claim  ought  to  be  perfectly 
clear  to  overturn  such  a  possession.  All  the  parties  lived  in  the 
neighbourhood,  the  defendant's  title  was  a  matter  of  public 
notoriety,  founded  upon  public  records,  and  upon  transactions  in 
the  face  of  the  world.  'The  tenant  for  life  was  not  a  perfect 
stranger  to  the  remainderman  under  the  deed,  but  his  own  mother ; 
interested  both  on  his  account  and  her  own,  to  prosecute  her 
claim  to  the  land,  if  she  had  considered  it  as  having  any  legal 
foundation.  Though  her  acts  may  not  be  legally  binding  upon 
him,  yet  in  the  mind  of  every  reasonable  man,  until  some  expla- 
nation is  given,  they  must  be  considered  as  possessing  some 
weight;  and  this  was  the  amount  of  the  direction  of  the  court. 

In  reply.  The  counsel  have  argued,  that  under  the  statutes  of 
Elizabeth,  every  voluntary  conveyance  is  to  be  considered  as 


456  NEW  JERSEY  SUPREME  COURT.. 

Den  v.  De  Hart. 

fraudulent,  which  is  made  while  the  grantor  is  indebted.  The 
opinion  which  Lord  Mansfield  entertained  upon  this  point,  was, 
however,  somewhat  different,  lie  considers  voluntary  convey- 
ances eo  nomine  as  not  objectionable.  The  iact,  that  the  grantor 
was  indebted,  is  a  circumstance  of  fraud,  but  not  conclusive,  and 
it  may  always  be  rebutted  by  other  evidence.  If  A.  is  worth 
£50,000  and  indebted  £5000,  should  make  a  voluntary  convey- 
ance to  his  son  on  his  marriage  of  property  to  the  amount  of 
£10,000,  would  any  court,  professing  to  be  guided  by  the  rules 
of  the  common  law,  which  Lord  Mansfield  considered  as  extend- 
ing to  every  case  embraced  by  the  statutes  in  question,  say  that 
this  deed  was  fraudulent  and  void?  Upon  the  principle  con- 
tended for,  and  in  the  broad  extent  to  which  it  has  been  pushed 
in  this  argument,  every  voluntary  conveyance  would  be  invalid  ; 
because  it  would  be  impossible  for  any  individual,  mixing  in  the 
ordinary  transactions  of  the  world,  to  be  perfectly  free  from  debt, 
or  to  know  that  he  was  so.  It  is  perfectly  immaterial  to  what 
amount,  whether  a  six-pence  or  a  million. 

It  is  impossible  for  any  court  of  justice,  or  for  any  man  who 
considers  the  law  as  "  the  perfection  of  reason,"  as  a  science,  the 
foundations  of  which  are  the  obvious  and  unalterable  principles 
of  common  sense,  seriously  to  utter  a  doctrine  of  so  monstrous 
a  nature.  The  true  doctrine  of  the  law,  if  indeed  any  one  fact, 
without  explanation,  should  necessarily  taint  every  transaction 
in  which  it  appears  with  fraud,  is  not  that  whenever  the  grantor 
is  indebted,  but  whenever  he  was  insolvent,  the  conveyance 
must  be  taken  to  be  invalid  and  dishonest. 

There  is  in  this  case  no  evidence  leading  to  the  supposition, 
that  the  grantor  was  insolvent  at  the  time  he  executed  the  con- 
veyance in  question.  Such  circumstances  as  can  be  collected 
after  such  a  lapse  of  time,  authorize  a  contrary  inference.  The 
deed  corresponds  in  every  important  particular,  with  a  will  which 
he  had  previously  made,  and  in  which  he  directs  his  executor  to  pay 
all  his  debts  out  of  his  personal  estate.  The  instrument  was  gener- 
ally known  of  at  the  time,  and  publicly  acknowledged  before  an 
officer  of  character  and  station.  The  property  was  generally 
supposed  to  belong  to  the  grantees.  The  grantor  was  considered, 
in  the  neighbourhood,  as  a  man  of  property.  All  these  circum- 
stances, which  it  is  impossible  to  believe  could  have  been  fabri- 
cated, negative  every  presumption  of  either  concealment  or  fraud. 


NOVEMBER  TERM,  1798.  457 

Den  v.  De  Hart. 

If  then,  there  was  neither  technical  nor  actual  fraud,  the  title 
of  the  plaintiff  was  unexceptionable.  The  charge  of  the  court  on 
the  point  of  possession  was  erroneous,  and  calculated  to  mislead 
the  jury.  It  is  impossible  to  ascertain  upon  what  precise  points 
they  erred,  but  it  is  evident  that  their  verdict  was  against  the 
justice  and  equity  of  the  case,  which  is  the  important  point  of 
inquiry  in  every  application  for  a  new  trial. 

The  opinion  of  the  court  was  delivered  at  this  term  by  KINSEY 
C.  J.  (After  stating  the  circumstances  of  the  case.) 

On  the  trial  of  this  cause  at  Nisi  Prius,  the  court  charged  the 
jury,  that  the  deed  upon  which  the  title  of  the  lessor  of  the 
plaintiff  rested  was  not  fraudulent,  from  the  single  circumstance 
of  its  being  voluntary;  but  that  if  the  jury  should  believe  that 
it  was  executed  with  a  design  to  defraud  honest  creditors,  or  if 
its  operation  was  to  defeat  fair  claims  which  might  exist  against 
the  estate,  it  was  fraudulent. 

2.  That  to  authorize  a  recovery  against  a  possession,  of  at  .least 
upwards  of  twenty  years,  the  plaintiff  ought  to  shew  a  clear  title. 

3.  That  the  confession,  by  an  executor,  of  a  judgment  by  cog- 
novit actionem  was  an  admission  of  assets,  whether  real  or  per- 
sonal, sufficient  to  satisfy  the  judgment. 

With  regard  to  the  two  latter  questions,  upon  which  consider- 
able ingenuity  has  been  displayed  in  the  argument,  I  shall  only 
observe,  that  in  the  case  of  Wright  v.  Hartshorne,  decided  in  this 
court  as  early  as  1756,  it  was  settled  on  demurrer,  that  real 
estate  was  assets  in  the  hands  of  an  administrator,  for  the  pay- 
ment of  debts:  this  doctrine  has  been  uniformly  recognized  and 
practised  under  since. 

The  principal  question  then,  which  remains  to  be  considered, 
is,  whether  the  deed  from  Little,  to  his  daughter  and  grand- 
children, was  fraudulent  and  void,  as  against  creditors  under  the 
statute  of  13  Elizabeth,  from  the  circumstance,  that  the  grantor 
was  indebted  at  the  time  of  its  execution  ?  If  this  question  be 
decided  in  the  affirmative,  the  verdict  in  favour  of  the  defendant 
must  stand. 

Fraud,  under  our  law,  is  either  express  or  a  legal  inference 
from  circumstances.  The  true  doctrine  which  is  now  recognized 
in  our  courts,  so  far  as  it  bears  upon  the  present  question,  may 
be  gathered  from  two  cases  decided  in  the  Court  of  Chancery, 
by  Lord  Hardwicke. 


458  NEW  JERSEY  SUPREME  COURT. 

Den  v.  De  Hart. 

In  the  case  of  Russel  v.  Hammond,  1  Atk.  13,  that  enlightened 
judge  holds  the  following  explicit  language,  "there  are  many 
opinions,  that  every  voluntary  settlement  is  not  fraudulent: 
what  the  judges  mean,  is,  that  a  settlement  being  voluntary,  is 
not  for  that  reason  fraudulent,  but  an  evidence  of  fraud  only. 
Though  I  have  hardly  known  one  case  in  which  the  person  con- 
veying, is  indebted  at  the  time  of  the  conveyance,  that  has  not 
been  deemed  fraudulent;  there  are,  to  be  sure,  cases  of  voluntary 
settlements  that  are  not  fraudulent,  and  those  are,  where  the 
person  making  is  not  indebted  at  the  time,  in  which  case  subse- 
quent debts  will  not  shako  such  settlement." 

In  Townshend  v.  Windham,  (2  Vesey.  10,  11,)  after  a  lapse  of 
several  years  had  allowed  him  time  to  examine  and  weigh  his 
former  determinations,  and  to  measure  with  precision  the  doc- 
trines which  he  had  promulged,  he  holds  language  of,  if  possible, 
a  still  more  decided  character.  "  There  is  no  case  where  a  person 
indebted,  makes  a  voluntary  conveyance  of  real  or  chattel  inter- 
est for  benefit  of  a  child,  without  the  consideration  of  marriage 
or  other  valuable  consideration,  and  dying  indebted  afterwards, 
that  that  shall  take  place."  "I  know  no  case  on  the  13th  Eliza- 
beth, where  a  man  indebted  at  the  time,  makes  a  mere  voluntary 
conveyance  to  a  child  without  consideration,  and  dies  indebted, 
but  that  it  shall  be  considered  as  part  of  his  estate  for  the  benefit 
of  his  creditors."  "A  man  actually  indebted,  and  conveying 
voluntarily,  always  means  to  be  in  fraud  of  creditors,  as  I  take 
it."  (See  Den  ex  dem.  Chews  v.  Sparks,  ante,  vol.  I.  56.)  In 
Twine's  case,  Rep.  80,  in  which  the  leading  doctrines  upon  this 
point  are  laid  down,  it  is  held,  that  natural  affection  is  not  a 
sufficient  consideration  to  give  validity  to  a  grant  as  against 
creditors  ;  the  consideration  must  be  a  valuable  one. 

These  cases  fully  establish  the  point,  that  a  conveyance  may 
be  legally  fraudulent  and  void,  though  there  is  no  dishonesty  in 
the  mind  of  the  grantor;  and  although  a  deed  is  not  deemed 
fraudulent,  from  the  single  circumstance  of  its  being  founded 
solely  on  consideration  of  natural  affection,  yet  the  principle, 
that  a  voluntary  deed,  made  when  the  grantor  is  indebted,  is  in- 
valid as  against  such  creditors,  is  recognized  by  numerous  author- 
ities, sanctioned  by  the  ablest  judges,  and  questioned  by  none. 
This  I  consider  as  the  settled  law,  and  it  is  built  upon  this  ground, 
that  no  man  shall  be  permitted  to  create  an  estate  in  his  own 


KOVEMBEK  TERM,  1798.  459 


Den  v.  De  Hart. 


family,  and  among  his  own  kindred,  at  the  expense  of  bus  credi- 
tors. 

The  case  of  Cadogan  v.  Kennet,  reported  in  Cowper,  does  not 
appear  to  me,  when  carefully  examined,  to  controvert  this  doc- 
trine. Lord  Mansfield's  language,  when  taken  together,  is  not 
at  variance  with  that  of  Lord  Hardwicke,  and  if  it  was  I  should 
feel  no  inclination  to  give  it  the  preference.  He  says,  in  that 
case,  "the  circumstance  of  a  man  being  indebted  at  the  time  of 
his  making  a  voluntary  conveyance,  is  an  argument  of  fraud." 
Compare  this  language  with  that  held  by  the  same  eminent  judge 
in  page  711  of  the  same  book,  in  the  case  of  Doe  v.  Houtledge, 
where  he  says,  "one  great  circumstance,  which  should  always 
•be  attended  to  in  these  transactions,  is,  whether  he  was  indebted 
at  the  time?  If  he  was,  it  is  a  strong  badge  of  fraud." 

I  agree  with  Lord  Hardwicke,  to  the  full  extent  of  his  lan- 
guage, that  to  give  away  an  estate,  without  making  provision  for 
the  payment  of  debts,  is  a  fraud,  which  it  is  the  duty  of  all  courts 
to  suppress:  I  will  go  further,  and  declare  it  to  be  my  opinion, 
that  whenever  an  attempt  of  this  kind  is  made ;  whenever  a  credi- 
tor can  discover  property  which  has  been  conveyed  under  such 
circumstances,  it  is  unreasonable  to  require  of  him,  nor  can  he 
be  called  upon  to  m'ake  any  examination  or  inquiry  in  order  to 
ascertain  whether  other  property  has  descended  to  the  heir  which 
might  be  sufficient  to  satisfy  his  claim.  Such  a  deed  is  not  only 
voidable,  upon  proof  that  there  is  no  other,  or  not  sufficient  prop- 
erty, but  it  is  absolutely  void. 

Viewing  the  case,  therefore,  in  this  light,  I  consider  the  charge 
of  the  court  at  the  trial  as  even  more  favourable  to  the  plaintiff 
than  the  law  warranted,  and  therefore  he  has  no  right  to  com- 
plain. I  should  have  felt  myself  constrained  to  have  told  the  jury, 
that  as  the  grantor  conveyed  the  estate  while  a  claim  existed 
against  it,  and  died  without  satisfying  the  demand,  the  deed  was 
absolutely  void;  not  that  these  were  circumstances  from  which 
they  might  infer  fraud. 

I  have  omitted  every  observation  upon  the  question  of  actual 
fraud.  This  rests  altogether  upon  circumstances,  which,  whether 
they  furnish  conclusive  or  probable  proof  of  a  dishonest  inten- 
tion, or  not,  depends  so  much  upon  the  characters  of  the  parties, 
and  is  so  completely  a  question  of  fact  for  the  decision  of  the 
jury,  that  I  will  not  venture  to  intimate  an  opinion. 


460  NEW  JERSEY  SUPREME  COURT. 

Den  v.  De  Hart. 

On  the  other  grounds,  however,  1  am  of  opinion  that  a  new 
trial  ought  not  to  be  granted. 
Rule  discharged. 

NOTE. — Lord  Thurlow  in  the  case  of  Stephens  v.  Olive,  2Sr.  C.  C. 
90,  recognized  the  doctrine  of  Lord  Hardwicke,  and  it  has  since 
been  confi rmed  in  Glaister  v.  Hewer,  8  Ves.  jun.  99.  Kidney  v.  Couss- 
maker,  12  Ves.  jun.  136.  Some  of  the  difficulties  in  the  way  have 
been  removed  bythe  judiciousrestrictionsstated  in  Lushv.  Wilkin- 
son, 5  Ves.  jun.  384,  where  it  is  said,  that  it  is  not  sufficient  that  the 
grantor  is  indebted  at  the  time  of  the  conveyance :  a  single,  or  an 
inconsiderable  debt  is  not  enough;  every  man  must  be  indebted 
for  the  common  bills  of  his  house,  though  he  pays  them  every  week. 
It  must  depend  upon  this,  whether  he  was  in  insolvent  circum- 
stances at  the  time.  If,  however,  the  limitations  introduced  by 
this  case  are  necessary  and  equitable,  so  is  the  extension  which 
has  been  given  to  it  in  another  direction,  in  the  case  of  Montague 
v.  Lord  Sandwich,  cited  12  Ves.  jun.  148,  156,  note,  in  which  it 
v;as  held,  that  if  the  conveyance  is  void  against  creditors  whose 
claims  existed  at  the  time  of  the  grant,  and  has  been  set  aside 
as  to  them,  subsequent  creditors  are  let  in.  1  Schoale  &  Lefroy 
156.  See  Osborne  v.  Moss,  7  John.  161.* 

With  regard  to  another  question  which  wasargued  by  thecoun- 
eel,  though  not  expressly  noticed  by  the  court,  viz.  whether  a  con- 
fession of  judgment  by  anexccutorisconclusiveagainsttheheirof 
Ibe  real  estate,  it  is  one  which  can  derive  little  illustration  from 
English  cases.  In  the  case  of  Mason's  devisees  v.  Peters'  administra- 
tors, 1  Munf.  437,  in  the  state  of  Virginia,  it  was  held,  that  a  judg- 
ment against  the  executors  only,  is  no  proof  against  the  devisees 
of  land;  for  there  is  no  privity  between  an  executor  and  the  heir 
or  devisee  of  land,  however  it  may  be  between  an  executor  and  a 
legatee  of  personals.  On  this  last  point,  Anderson  v.  Fox,  2  Hen.  & 
Munf.  245.  AtwelCs  administrators  v.  Milton,  4  Hen.  &  Munf.  253. 

That  the  claim  on  the  estate  was,  in  this  case,  for  unliquidated 
damages,  furnished  no  ground  of  objection  to  apply  ing  the  statute 
of  Elizabeth,  which  has  been  held  to  extend  not  only  to  the  credi- 
tors, but  to  all  others  who  have  any  cause  of  action  or  suit,  or 
any  penalty  or  forfeiture,  either  to  the  king  or  subject.  Gil.  Eq.  29. 

CITED  IB  Hainet  v.  Price,  Spen.  482.    Mulford  v.  Peterton,  6  Vr.  135. 

*See  2  John.  Ch.  48.  3  Ib.  500,  501.  Whartont  Dig.  291.  Lessee  of  Ridgway 
V.  Underwood. 


NOVEMBEE  TERM,  1798.  461 


Grieve  v.  Annin. 


GRIEVE  and  MOFFAT  against  ANNIN  and  HENRY. 

Where  the  condition  of  a  bond  is  to  pay  a  certain  snm  of  money  in  article? 
of  merchandise,  on  a  certain  day,  under  a  plea  of  payment  at  the  day,  a  tender 
and  refusal  cannot  be  proved:  nor  will  the  defendant  be  permitted  to  avail 
himself,  in  mitigation  of  damages,  of  the  circumstance,  that  the  current  price 
of  the  article  agreed  to  be  paid,  was,  at  the  time  when  the  payment  was  to  have 
been  made,  lower  than  the  price  fixed  in  the  bond. 

This  was  an  action  of  debt  on  a  bond.  The  defendants  had 
bound  themselves,  under  a  penalty,  to  pay  the  sum  of  £391  5s. 
in  good  merchantable  leather,  at  Albany,  on  the  15th  October, 
1796 :  the  price  of  the  sole  leather  was  to  be  2s.  6d.  and  the  upper 
leather  at  4s.  Id.:  three  pounds  of  the  former  were  to  be  fur- 
nished for  one  pound  of  the  other. 

The  defendants  pleaded — 1.  Non  estfactum.    2.  Performance. 

At  the  trial  of  the  cause,  the  defendants  offered  in  evidence, 
under  the  plea  of  performance,  that  at  the  time  fixed  in  the  bond 
for  the  performance  of  the  condition,  they  had  tendered  tho 
leather  agreeably  to  the  condition,  but  the  plaintiffs  refused  t  > 
receive  the  same,  alleging  that  it  was  of  an  inferior  quality. 

They  also  offered  to  prove  that  the  price  of  the  leather,  as  fixe.! 
in  the  condition,  was  higher  than  the  market  price  at  the  time  i\ 
was  to  be  delivered  ;  and  that  therefore,  in  estimating  the  dan- 
ages  sustained  by  the  non-delivery,  it  should  be  calculated  on  tb  « 
amount  of  leather  which  it  was  agreed  to  furnish,  rather  than  01  > 
the  amount  of  money  whicb  was  to  be  paid  for  it.  By  making  th ) 
calculation  in  conformity  with  the  rule  suggested,  a  considerably 
abatement  would  be  made  from  the  £391  5s.  the  sum  stated  id 
the  bond. 

This  evidence  was  overruled,  and  the  question  as  to  its  admis- 
sibility  was  reserved  for  the  opinion  of  the  court  before  whom  it 
was  now  argued. 

Williamson,  for  the  plaintiffs.  The  condition  of  this  bond  binds 
defendants  to  pay  the  sum  of  £391  5s.  in  good  leather,  at  a  cer- 
tain time  and  place,  at  fixed  prices,  and  in  settled  proportions. 
The  defendants  have  pleaded  non  est  factum  and  performance. 
Under  the  plea  of  performance,  they  offer  to  prove,  that  a  ten 
der  was  made ;  a  fact  which  is  never  admitted  in  evidence,  tiniest 
it  is  pleaded,  which  contradicts  the  plea  which  is  considered  at 
covering  it,  because  the  fact  of  a  tender  admits  a  refusal,  and 
shews  there  was  no  actual  performance.  An  excuse  for  not  per- 


462  NEW  JERSEY  SUPREME  COURT. 

Grieve  v.  Annin. 

forming,  is  certainly  a  different  thing  from  an  actual  performance ; 
the  one  negatives  the  other. 

The  doctrine  of  tenders  is  one  of  strict  law,  and  in  the  plead- 
ing it  is  necessary  to  point  out,  and,  of  course  in  the  tendry,  to 
set  out,  the  particular  articles  whereby  they  can  be  known  and 
distinguished  from  others:  for  if  the  tender  be  good,  it  is  a  bar 
to  an  action  on  the  contract,  and  the  articles  vest  in  the  person 
to  whom  they  are  tendered,  they  continue  at  his  risk,  and  he 
ought  to  be  able  to  identify  them.  1  Swift's  Syst.  404.  This  has 
not  been  done  in  the  present  case ;  no  plea  of  tender  has  been 
made,  and  the  evidence  therefore  is  inadmissible. 

2.  Nor  is  the  evidence  of  a  difference  in  the  price  of  the  articles 
covenanted  to  be  delivered,  such  testimony  as  can  affect  the  nature 
of  the  undertaking.  The  rule  of  the  law  is,  that  if  the  value  of  any 
thing  be  expressly  stipulated  in  a  contract,  the  value  shall  be  in- 
tended as  things  are  at  the  time  when  the  contract  takes  effect. 
1  Powell  on  Contracts  408.  Money  is  the  measure  of  value,  (4  Bur. 
2228)  and  the  sum  fixed  upon  is  the  amount  of  the  debt ;  it  is  the 
sum  fixed  and  agreed  upon  between  the  parties,  and  is  therefore 
the  proper  quantum  of  damages.  Bur.  2229.  1  Fonbl.  Tr.  on  Eq, 
142.  Small  v.  Lord  Fitzwilliaris  Free,  in  Chan.  102. 

A.  Ogden,  contra.  The  first  question  is,  whether  the  proof  of 
a  tender  is  admissible  under  a  plea  of  performance.  With  regard 
to  the  plea  of  performance  of  covenants,  the  rule  is,  that  where- 
ever  they  are  affirmative,  a  general  plea  of  performance  is  an 
absolute  bar  to  the  action ;  where  they  are  negative,  it  must  be 
shewn  how  they  were  performed.  Esp.  372.  The  covenant  is 
here  affirmative  to  do  a  certain  thing,  and  the  plea  is  technically 
unobjectionable.  What  acts,  then,  were  necessary  on  the  part  of 
the  defendants?  and,  in  what  manner  could  the  undertaking  by 
them  be  fulfilled?  Clearly,  if  they  were  prepared  with  the  leather, 
if  it  was  offered  to  the  plaintiffs,  and  they  have  refused  to  accept 
the  tender,  without  some  legal  reason,  the  covenants  have  been 
performed,  and  the  right  of  action  is  extinguished.  The  price 
of  leather  had  diminished  in  the  market,  and  if  the  principles 
contended  for  by  the  plaintiffs  are  to  bo  received  in  a  court  of 
justice,  the  most  glaring  injustice  must  result:  the  plain  tiffs  would 
never  receive  the  article  if  the  price  had  fallen ;  they  would  en- 
force the  payment  of  it  specifically  if  it  had  risen.  All  the  risk 


NOVEMBER  TERM,  1798.  463 

Grieve  v.  Annin. 

of  a  change  in  the  state  of  the  market  is  thrown  upon  the  defen- 
dants, who  must  lose  under  whatever  circumstances  may  arise. 
Supposing,  however,  that  the  facts  which  it  is  offered  to  prove 
do  not  amount  to  a  bar  of  the  action,  they  are  clearly  admissible 
in  mitigation  of  damages.  Wherever  the  non-payment  of  a  debt 
has  proceeded  from  the  negligence  of  the  creditor,  he  forfeits  his 
right  to  damages  or  interest ;  it  is  but  a  slight  extension  of  the 
rule,  to  apply  the  same  principle  to  a  case  of  this  description. 

Williamson,  in  reply.  The  defence  set  up  is  founded  upon 
two  grounds,  which  are  manifestly  repugnant  to  each  other. 

1.  It  is  contended,  that  the  facts  offered  to  be  proved  amount 
to  an  actual  bar  of  our  demand.  We  admit  this  to  be  so,  and, 
upon  this  ground,  object  to  its  admission.  If  it  amounts  to  a  bar 
in  itself,  the  rule  of  law  requires  that  it  should  have  been  pleaded 
in  a  regular  manner;  or  the  plaintiffs  apprized  of  the  nature  of 
the  defence,  that  he  might  have  been  prepared  with  testimony 
to  shew  that  no  leather  was  in  fact  tendered,  or  to  .shew  that  it 
was  of  a  kind  not  suitable  for  the  plaintiffs'  purposes,  and  not 
such  as  the  defendants  had  stipulated  to  deliver.  It  not  having 
been  pleaded,  and  no  notice  having  been  given,  the  evidence  is 
clearly  inadmissible. 

Nor  is  the  ground  upon  which  it  is  offered,  in  mitigation  of 
damages,  more  substantial.  If  it  can  have  any  operation,  it  must 
be  by  shewing  that  the  defendants  have  legally  performed  their 
covenants.  "We  answer  to  this,  it  is  a  surprise.  It  cannot  operate 
in  any  other  manner,  because  evidence  which  shews  that  the  plain- 
tiff's have  no  legal  ground  of  action,  must  be  a  bar  or  nothing.  To 
pffer  it  in  mitigation  of  damages,  or  in  other  words,  to  shew  that 
we  ought  to  recover  no  damages,  is  only  a  circuitous  mode  of 
attaining  an  end  which  the  law  will  not  permit  directly. 

KINSEY  C.  J.  This  is  an  action  of  debt  on  a  bond  conditioned 
to  pay  £391  5s.  in  good  leather,  at  Albany,  on  the  15th  Octo- 
ber, 1796,  at  fixed  prices,  and  the  different  kinds  in  certain  pro- 
portions. The  defendants  have  pleaded  payment. 

Under  this  plea,  they  offered  to  prove — 1.  That  at  the  day 
stated  in  the  condition  of  the  bond,  they  actually  tendered  the 
leather  which  they  had  undertaken  to  furnish,  at  the  time  agreed 
upon,  and  that  it  was  refused  by  the  plaintiffs. 


464  NEW  JERSEY  SUPREME  COURT. 

Grieve  v.  Annin. 

2.  That  the  price  fixed  in  the  bond,  as  that  at  which  the  lea- 
ther was  to  be  received,  exceeded  the  current  market  price  at 
the  time,  and  therefore  the  damages  should  be  proportionably 
diminished. 

The  question,  as  to  the  admissibility  of  this  evidence  upon 
this  state  of  the  pleadings,  seems  to  be  incumbered  with  little 
difficulty.  The  rule  of  Iwa  is  clear  and  explicit,  that  the  evidence 
offered  on  the  part  of  a  defendant  must  always  correspond  with 
the  defence  stated  in  the  pleadings.  This  rule  is  wholesome  and 
necessary,  and  no  circumstances  of  apparent  hardship  will,  in 
any  case,  authorize  a  departure  from  its  strict  letter,  or  any  abate- 
ment of  its  rigour.  The  plea,  then,  is  payment  at  common  law 
as  a  performance,  and  consequently  a  discharge  of  the  bond,  an 
absolute  bar  to  the  action:  tender  can  in  no  instance  be  so  con 
sidered.*  So  far  from  being  a  bar  to  the  action,  or  discharge  o)' 
the  debt,  it  is  an  express  acknowledgment  of  a  subsisting  righ' 
to  demand,  and  of  an  obligation  to  pay.  It  goes  only  in  bar  01 
damages  subsequent  to  the  refusal ;  it  is  pleaded  with  an  uncor< 
prist,  and  the  money  must  be  brought  into  court.  It  must  b< 
pleaded,  and  can  in  no  instance  be  admitted  in  evidence  undei 
the  general  issue.  It  is  an  issuable  fact,  and  the  party  against 
whom  it  is  to  operate  ought  always  to  have  notice,  that  ho  may 
come  prepared  to  controvert  the  fact.  This  evidence,  then,  was 
properly  overruled. 

As  to  the  second  point.  There  are  two  facts  which  appear 
distinctly  in  the  case :  first,  that  the  defendants  were  indebted  to 
the  plaintiffs  £391  5s.;  second,  that  the  plaintiffs  agreed,  in  sat- 
isfaction of  the  debt,  to  receive  a  certain  quantity  of  leather  at  a 
fixed  price.  The  defendants,  therefore,  had  their  election  on,  tbo 
day  specified,  to  make  a  tender  of  the  leather,  agreeable  to  the 
items  of  the  contract.  If  it  had  borne  a  higher  price,  the  plain- 
tiffs, we  think,  would,  under  the  circumstances,  have  been  pre- 
cluded from  enforcing  their  claim  for  more  than  the  amount  of 
the  money;  if  the  market  price  was  less,  the  right  still  existed 
for  the  money;  if  the  leather  was  not  paid.  It  may  bo,  that  the 
market  price  continued  the  same  as  at  the  time  of  making  the 
contract ;  that  the  plaintiffs  might  have  occasion  for  that  quantity 

*S«e  the  case  of  Alcorn  v.  Wettbrook,  where  it  was  held,  that  a  tender  on  the 
one  Bide,  and  a  refusal  to  accept  on  the  other,  were,  in  point  of  law,  equivalent 
to  payment.  1  Wilt.  116.  Phil.  Ev.  164. 


NOVEMBER  TERM,  1798.  4G5 


'  Grieve  v.  Annin. 


of  leather  at  the  time  mentioned,  and,  in  order  to  ensure  its 
being  there,  might  have  found  it  advantageous  to  be  satisfied 
with  paying  more  than  the  current  price  of  the  article.. 

Be  this,  however,  as  it  may,  as  the  leather  was  not  delivered 
agreeably  to  the  undertaking,  the  right  of  election,  on  the  part 
of  the  defendants,  ceased.  It  would  be,  indeed,  a  most  singular 
construction  of  this  agreement,  to  allow  the  defendant  to  omit 
the  payment  of  both  the  money  or  the  leather  at  the  time,  and 
then  to  demand  an  abatement  of  the  debt,  on  the  ground,  that 
he  might  have  furnished  leather  at  a  lower  price.  There  is  no 
mutuality  in  such  a  construction  of  the  instrument,  and  certainly 
as  little  equity. 

The  defendants  had  their  option  to  pay  the  money  or  the 
leather,  at  the  stipulated  time  and  place.  If  the  leather  had 
been  legally  tendered,  and  refused  without  an  adequate  reason, 
the  consequences  would  have  rested  on  the  plaintiffs,  and  by 
pursuing  a  proper  course,  the  right  to  bring  this  action  would 
have  been  defeated.  The  parties  have  made  their  own  contract; 
they  have  expressed  it  in  their  own  words,  and  the  language 
admits  of  a  legal  and  explicit  construction :  the  court  have  no 
authority  to  alter  its  terms  and  create  an  obligation  to  which  no 
assent  was  ever  given. 

It  would  be  almost  superfluous  to  cite  authorities  to  warrant 
so  reasonable  a  rule  of  construction  as  we  have  given :  but  there 
is  a  short  report  of  a  case  in  Bro.  Abr.  title  Debt,  pi.  159,  so  per- 
fectly analogous  that  we  may  refer  to  it  as  authoritative.  One 
had  undertaken  to  pay  £20,  or  deliver  twenty  bales  of  wool. 
The  obligee  demanded  the  money,  and  it  was  held,  that  before 
the  day  fixed  for  payment,  the  obligor  had  his  election  to  pay 
either ;  after  the  day,  without  any  tender  being  made,  the  obligee 
might  demand  the  money.  The  principles  of  the  cases  are  pre- 
cisely similar.  There  are  no  grounds  of  reason  or  equity",  nor 
any  principle  of  law,  on  which  this  application  for  an  abatement 
can  be  supported.  The  evidence,  therefore,  on  this  point  also, 
was  properly  overruled,  and  there  must  be 

Judgment  for  the  plaintiffs. 

VOL.  i.  2  E 


466  NEW  JERSEY  SUPREME  COURT. 

Den  v.  Spinning. 

[FEBRUARY  TERM,  1799.] 

DEN  ex  dem.  JOUET  against  SPINNING. 

The  interest  of  the  mortgagee  is  personal  estate,  and  passes  under  a  convey- 
ance of  personal  property ;  but  the  assignee  claiming  under  the  transfer,  by  the 
legislature,  of  the  personal  estate  of  the  mortgagee,  which  had  been  confiscated 
for  treason,  may  bring  ejectment  on  the  mortgage. 

Query.  In  whose  name  must  the  action  be  brought? 

This  was  an  action  of  ejectment  for  lands  in  Essex  county.  A 
verdict  had  passed  for  the  defendant,  and  on  a  motion  for  a  new 
trial,  by  the  plaintiff,  it  appeared : — 

That  Jouet,  in  whose  name  the  suit  was  brought,  had  loaned  a 
sura  of  money,  for  which  Spinning  and  two  others  had  given 
their  bonds  for  £270,  and  Spinning  himself  a  mortgage  on  the 
premises  in  controversy,  dated  in  November,  1775.  The  money 
secured  by  the  mortgage  became  payable  in  June,  1776. 

During  the  revolutionary  contest,  Jouet,  the  mortgagee,  joined 
the  British  armies;  and  in  January,  1779,  final  judgment  was 
entered  against  him  on  an  inquisition  of  treason,  regularly  taken 
under  the  acts  of  assembly.  , 

In  May  and  June,  following,  two  several  payments  were  made 
to  the  commissioner  of  forfeited  estates,  on  behalf  of  the  said 
debt,  and  the  whole  sum  remaining  duo  and  unpaid,  including 
interest  to  the  time  of  trial,  was  £32  12s.  6d. 

The  plaintiff  gave  in  evidence  an  act  of  assembly,  passed  March, 
1795,  by  which  the  state  of  New  Jersey  transferred  all  the  residue 
of  the  personal  estate  of  said  Jouet,  remaining  undisposed  of,  to  his 
daughters.  (See  the  case  of  Den  ex  dem.  Jouet  v.  Wat  kins,  ante.) 

The  principal  question  arising  in  the  case  was,  whether  under 
the  act  of  assembly  above  mentioned,  any  interest  in  the  mort- 
gage deed  vested  in  the  daughters,  upon  which  this  action  of 
ejectment  could  be  maintained,  they  being  the  real  plaintiffs  in 
the  cause  ?  It  was  argued  by  I.  H.  Williamson  and  A.  Ogden,  for 
the  plaintiff;  and  M.  Williamson  for  defendant. 

For  the  plaintiff.  Under  the  act  in  question,  the  whole  per- 
sonal estate  of  C.  Jouet,  the  mortgagee,  remaining  undisposed  of, 
was  transferred  to  his  daughters.  The  debt  due  from  the  defend- 
ant is  clearly  within  th'e  terms,  as  well  as  the  spirit  of  the  act, 
and  consequently,  the  right  to  demand  it  is  vested  in  them.  Tho 
mortgaging  of  real  estate,  to  secure  the  debt,  cannot  alter  the 


FEBKUABY  TEEM,  1799.  467 

Den  v.  Spinning. 

nature  of  the  property:  it  is  considered  merely  in  the  light  of  a 
pledge,  as  a  collateral  security.  {Powell  on  mortgage  106)  and 
the  transfer  of  the  debt  carries  also  the  security,  and  the  means 
by  which  the  payment  is  to  be  enforced.  2  Bur.  978.  Chan.  Ca. 
88,  283.  Prec.  in  Chan.  11.  The  giving  the  debt  was  the  princi- 
pal end  of  the  statute,  and  the  remedy,  or  security,  goes  with  it 
as  a  necessary  consequence.  The  rule  of  law  is  clear,  that  when- 
ever a  power  is  given  by  a  statute,  every  thing  necessary  to  the 
making  it  effectual  is  given  by  implication ;  for  the  maxim  ig 
quando  lex  aliquid  concedit,  concedere  videtur  et  id  quod  devenitur 
ad  illud.  12  Rep.  130-1.  2  Inst.  306.  6  Bac.  Abr.  369. 

In  fact,  so  far  as  regards  this  formal  part  of  the  case,  the 
estate  never  has  been  divested  out  of  Jouet.  All  his  property 
was  confiscated,  in  consequence  of  the  treason  committed  by  him, 
but  the  state  never  could  have  prosecuted  for  the  recovery  of 
this  debt,  or  sued  on  the  mortgage,  except  in  his  name.  In  the 
third  section  of  the  act  of  April  18,  1778,  (Wilson  43)  this  is 
expressly  provided  for,  and  the  commissioners  of  forfeited  estates 
are  directed  to  prosecute  and  sue  for  the  debts,  &c.  due  to  the 
offender,  in  the  name  of  such  offender. 

This  debt  never  having  been  recovered  by  the  commissioners 
of  forfeited  estates,  and  it  being  a  chose  in  action,  which  until 
reduced  into  possession  by  legal  prosecution,  was  never  totally 
divested  out  of  the.  real  owner:  the  moment  the  treaty  of  peace 
was  ratified,  his  rights  were  preserved  to  him,  and  he  became 
entitled  to  prosecute  this  action  on  his  own  account,  and  for  his 
own  benefit.  No  impediments  are  to  be  interposed  to  prevent  a 
recovery  by  a  British  subject  of  his  just  debts,  and  this  treaty 
being  under  the  constitution  of  the  Dnited  States,  the  supreme 
law  of  the  land  is  obligatory  upon  this  court. 

Whether  the  estate  then,  was  transferred  by  the  act  of  assem- 
bly, or  whether,  being  a  chose  in  action,  it  never  was  taken  out 
of  the  offender,  the  plaintiff  is  clearly  entitled  to  recover  in  this 
action.  There  is  no  pretence  for  saying,  that  the  debt  has  been 
destroyed,  or  that  the  state  can  prosecute  for  it.  The  act  in 
question,  if  it  passed  the  bond  or  debt,  must  either  have  given 
to  the  representatives  of  Jouet,  the  remedy  by  which  its  pay- 
ment was  to  be  enforced,  or  it  must  have  had  the  effect  of 
annulling  the  mortgage  deed,  and  relieving  the  defendant  from 
the  pledge  which  had  been  given. 


KEW  JERSEY  SUPREME  COURT. 


Den  v.  Spinning. 


For  the  defendant.  Tho  main  question  to  bo  considered, 
involving  in  itself  the  entire  merits  of  the  case,  is,  whether  tho 
plaintiff  is  entitled  to  recover  in  the  present  action  ?  If  no 
recovery  can  legally  be  had,  the  verdict  is  right,  and  no  ne\v 
trial  -will  bo  granted. 

Jouet,  the  offender,  convicted  of  high  treason  for  joining  the 
armies  of  the  enemy,  whoso  entire  estate  has  been  confiscated 
on  account  of  his  treason,  has  been  considered  by  the  opposite 
counsel,  in  the  light  of  a  British  subject,  whoso  rights  are  pre- 
served and  guaranteed  by  the  treaty  of  peace.  The  benefit  of 
that  instrument,  which  was  designed  to  protect  the  interests  of 
an  innocent  and  suffering  class  of  men,  who  had  been  guilty  of 
no  moral  crime  or  political  offence,  but  who  had,  in  the  warmth 
of  a  furious  and  protracted  war,  been  involved  indiscriminately 
in  the  same  punishment  with  the  crafty  traitor  and  pusillanimous 
deserter  of  his  country's  standard,  it  is  contended,  is  to  extend 
to  protect  rights  which  had  been  appropriated,  and  secure 
property  which  had  been  confiscated  in  consequence  of  a  notori- 
ous act  of  treason.  It  is  sufficient  barely  to  state  this  propo- 
sition to  establish  its  utter  weakness.  Jouet  was  an  American: 
instead  of  making  his  election  between  the  two  parties  when  the 
government  was  dissolved,  he  remained  here ;  ho  took  upon 
himself  tho  duties  of  a  citizen  of  the  independent  state  of  New 
Jersey;  became  amenable  to  its  laws,  and  violated  his  allegiance 
and  his  duty  by  a  subsequent  act  of  treason.  It  would  be  a 
manifest  perversion  of  the  terms  of  the  treaty,  to  include  him 
within  its  provisions. 

Under  the  act  of  assembly,  transferring  to  the  daughters  of 
Jouet,  all  his  personal  estate  remaining  undisposed  of,  it  is  con- 
ceived no  recovery  can  legally  be  had.  The  express  language 
of  the  act  embraces  only  personal  property,  and  although  the 
interest  of  the  mortgagee  is  sometimes  considered  as  a  personal 
interest,  because  intended  to  secure  a  debt,  yet  by  bringing  an 
action  of  ejectment,  it  is  treated  as  a  real  right.  Before  the  mort- 
gage becomes  forfeited  by  the  non-performance  of  the  condition 
of  the  bond,  the  debt  is  the  principal,  tho  security  merely  collat- 
eral. Upon  the  forfeiture  of  the  bond,  however,  at  strict  law,  the 
estate  is  absolute,  and  the  permission  to  redeem  at  any  subse- 
quent time  is  an  instance  of  extraordinary  liberality,  allowed  to 
tlie  mortgagor  to  prevent  him  from  absolutely  losing  his  property. 


FEBRUAEY  TEEM,  1799.  468 

•  *  . 

Den  v.  Spinning. 

The  mortgagee  however,  is  always  considered,  strictly  speaking, 
as  the  owner  of  the  land ;  he  may  maintain  an  ejectment  at  any 
time  after  the  execution  of  the  deed,  and  it  seems  a  solecism  in 
language  to  call  a  right  to  real  property  a  personal  interest. 

It  is  conceded,  that  the  debt  was  personal  property;  that  it 
passed  under  the  act  of  assembly,  and  the  claim  might  have 
been  legally  enforced  by  an  action  of  debt  on  the  bond.  There 
will  be  no  defect  of  justice  in  supporting  the  present  verdict:  the 
interests  of  all  parties  will  be  preserved,  and  the  present  defend- 
ant, who  is  alone  called  upon  in  this  action,  will  only  be  respon- 
sible with  the  other  obligors  in  the  bond,  who  must  be  joined 
with  him  in  an  action  of  debt.  Instead,  therefore,  of  compelling 
the  present  defendant  to  pay  the  whole  debt,  the  others  will  be 
forced  to  contribute  according  to  their  respective  interests. 

If  this  verdict  is  set  aside,  and  the  plaintiff  recovers  in  another 
action  of  ejectment,  the  consequence  will  be,  that  he  will  acquire 
a  valuable  estate,  which,  at  the  time  of  executing  the  mortgage  in 
question,  was  considered  as  an  ample  security  for  the  whole  amount 
advanced,  in  consequence  of  the  non-payment  of  little  more  than 
one-tenth  of  that  sum.  This  property  has  since  increased  greatly 
in  value,  and  this  will  become  the  right  of  the  plaintiff,  if  he  ia 
allowed  to  recover  in  an  action  of  ejectment ;  or  the  defendant  will 
be  compelled  to  have  recourse  to  a  tedious  and  expensive  chan- 
cery suit,  which  must  terminate  precisely  as  the  action  of  debt 
would  now  do.  On  the  contrary,  the  remedy  of  the  plaintiff  is  per- 
fect and  adequate,  by  an  action  of  debt;  he  can  sustain  no  damage 
by  refusing  a  new  trial,  while  the  defendant  may  by  granting  one. 

It  is  not  meant  to  deny,  that  in  some  instances  the  interest  of 
the  mortgagee  is  considered  as  part  of  his  personal  estate;  it  has 
been  so  held  to  prevent  injustice,  and  for  the  same  reason  wher- 
ever it  will  operate  hardship,  it  will  be  regarded  as  real  property, 
to  which  it  is  far  more  nearly  assimilated. 

In  reply.  It  has  been  urged,  that  the  debt  secured  by  mort- 
gage is  real  pi*operty:  no  ground  has  been  stated  as  the  founda- 
tion of  this  opinion,  which  is  contradicted  by  the  uniform  current 
of  authorities.  It  never  passes  by  a  devise  of  real  estate;  tho 
right  to  receive  the  money  goes  to  the  executor.  An  ejectment 
is  merely  to  recover  possession  of  the  pledge,  which,  agreeably 
to  the  general  law  of  mortgages,  continues  in  the  possession,  and 


470  NEW  JERSEY  SUPREME  COURT. 

Den  v.  Spinning. 

under  the  control  of  the  mortgagor,  until  changed  by  the  judg- 
ment of  the  court.  But,  when  the  possession  is  thus  altered,  the 
property  still  continues  a  pledge,  which  may  bo  redeemed  within 
a  reasonable  time,  until  the  party  by  his  own  negligence,  forfeits 
his  claim  and  his  right  to  the  property. 

From  the  principles  contended  for,  it  would  follow,  that  the 
act  of  assembly  transferring  the  interest  of  the  state  to  the 
daughters  of  Jouet,  would  operate,  so  far  as  regards  the  present 
case,  chiefly  by  discharging  the  land  of  the  debt  which  it  was 
intended  to  secure.  The  debt  is  acknowledged  to  have  passed : 
the  state,  after  assigning  the  bond,  can  have  no  further  interest 
in  the  security.  Either  the  mortgage  deed  must  be  cancelled,  a 
conclusion  certainly  never  contemplated  by  the  legislature,  enur- 
ing to  the  benefit  of  one  whose  interests  never  were  in  their  view, 
or  it  must  go  with  the  debt,  as  inseparable  from  it.  The  law 
gives  the  debt,  the  remedy  follows  of  course. 

The  act  under  which  the  inquisition  was  had,  confiscates  all 
the  estate  of  C.  Jouet,  and  the  commissioners  of  forfeited  estates 
are  directed  to  sue  in  the  name  of  the  offender.  By  the  act, 
transferring  the  personal  estate  to  the  real  plaintiffs  in  this  suit, 
they  likewise  are  authorized  to  prosecute  in  the  name  of  their 
father.  No  objection,  therefore,  can  be  raised  on  that  ground, 
and  every  difficulty  in  the  way  of  a  final  recovery  is  removed. 

KINSET  C.  J.  This  is  an  ejectment  on  a  mortgage,  brought  for 
the  recovery  of  lands  in  Essex  county.  The  premises  were  mort- 
gaged, in  November,  1775,  by  the  present  defendant,  to  the  nomi- 
nal plaintiff,  as  a  security  for  a  debt.  Jooet,  the  plaintiff,' having 
committed  an  act  of  treason,  final  judgment  passed  against  him,  on 
an  inquisition  under  the  act  of  April,  1778,  and  his  entire  estate, 
being  confiscated,  vested  in  the  state  of  New  Jersey,  in  January, 
1779.  Payments  were  made  on  account  of  this  debt  to  the  com- 
missioners of  forfeited  estates,  but  a  balance  still  remaining  due, 
this  ejectment  is  brought  to  the  use  of  the  daughters  of  Jouet,  to 
whom  the  legislature,  by  an  act  of  March  5,  1795,  conveyed  all 
the  interest  of  the  state  in  the  personal  property  of  the  offender. 

The  main  question  arising  on  these  facts,  is,  ought  a  recovery 
to  be  had  in  this  form  of  action  ?  if  it  can,  the  verdict  is  erroneous, 
and  ought  to  be  set  aside;  if  not,  whatever  may  have  been  the 
grounds  of  the  decision,  no  new  trial  should  be  granted 


FEBRUARY  TERM,  1799.  471 

Den  v.  Spinning. 

It  appears  to  me  to  be,  at  this  time,  the  settled  doctrine  of 
the  law,  whatever  opinions  may  have  been  formerly  held,  that  a 
mortgage  is  merely  personal  estate,  and  the  land  a  security  for 
the  payment  of  a  subsisting  debt..  The  mortgagee  can  exercise 
no  act  of  foreclosure;  he  can  neither  lease  nor  commit  waste. 
The  mortgagor  may,  in  an  action  of  ejectment,  bring  the  money 
into  court,  and  tender  it  to  the  plaintiffs;  and  a  payment  with- 
out deed  revests  in  the  mortgagor  all  the  estate  and  interest 
which  he  previously  had  in  the  premises.  Thus  the  interest  is 
considered  as  merely  a  personal  one. 

Still,  however,  before  payment,  an  action  of  ejectment  can  be 
sustained,  as  one  means  of  enforcing  the  demand.  By  the  act  of 
April,  1778,  sec.  3,  the  commissioners  of  forfeited  estates  may 
prosecute  for  the  debts  and  demands  due  to  the  offender,  in  the 
name  of  such  offender.  This  was  in  the  exercise  of  a  power 
clearly  belonging  to  the  legislature,  and  against  which  it  appears 
to  me  there  can  exist  neither  a  legal  nor  equitable  objection.  By 
the  act  of  1795,  the  legislature  conveys  all  the  interest  in  the 
personal  estate  of  C.  Jouet,  then  remaining  undisposed  of,  to  the 
daughters  of  Jouet,  authorizing  them  to  sue  for  the  recovery  of 
the  same,  either  in  their  own  names  or  in  the  name  of  their 
father. 

The  money  not  having  been  paid  on  the  bond,  an  ejectment 
is  a  remedy  to  enforce  the  claim,  which  the  law  recognizes  as 
formally  correct.  This  action  is  properly  brought  in  the  name 
<5f  C.  Jouet,  and  it  does  not  strike  me,  that  any  just  or  technical 
difficulty  exists  to  prevent  a  recovery.  The  verdict  was,  there- 
fore, against  evidence,  and  must  be  set  aside,  and  without  costs. 

BOUDINOT  J.  (after  stating  the  circumstances  of  the  case.) 
The  defendant's  counsel  has  objected,  that  the  sum  remaining 
due  being  so  small,  the  action  for  its  recovery  should  have  been 
debt  on  the  bond,  and  not  ejectment  on  the  mortgage.  The 
question,  however,  in  an  action  of  ejectment  is  not,  what  is  the 
amount  of  the'debt?  but  has  the  plaintiff  a  right  to  the  land?  It 
is  perfectly  immaterial,  whether  £10  or  £10,000  is  due  on  the 
mortgage;  the  right  of  possession  is  equally  perfect  in  either 
case,  and  of  consequence  his  right  to  a  recovery.  The  law 
allows  to  the  plaintiff  several  remedies,  he  is  allowed  to  elect 
between  them,  or  to  pursue  them  all  at  the  same  time,  and  I  am 


472  NEW  JERSEY  SUPREME  COURT. 

Den  v.  Spinning. 

not  aware  that  this  court  has  any  authority  to  interpose  or  to 
control  him  in  the  exercise  of  this  power.  Neither  am  I  able 
to  comprehend  in  what  manner  the  evils  contemplated  by  the 
counsel,  can  flow  from  this  doctrine.  The  defendant  may  tender 
the  amount  due,  and  in  that  case  the  plaintiff  must  proceed  at 
his  peril. 

If,  however,  any  legal  objections  exist  to  a  recovery  in  this 
case,  it  is  perfectly  immaterial  upon  what  grounds  the  verdict 
may  have  passed  for  the  defendant;  it  would  be  in  vain  to  grant 
a  new  trial,  if  in  the  end  the  result  must  be  the  same.  This 
brings  me  to  consider  the  main  question  in  the  case,  viz. :  Can  the 
present  action  be  maintained  in  the  name  of  C.  Jouet,  the  mort- 
gagee, as  lessor  of  the  plaintiff? 

There  is  no  principle  in  the  law  better  settled,  than  that  the 
plaintiff  in  ejectment,  must  shew  that  his  lessor  was  seized,  or 
possessed  of  such  an  estate  in  the  premises,  as  to  warrant  him 
in  making  the  lease  set  forth  in  the  declaration.  The  lessor  of 
the  plaintiff,  on  this  record,  is  C.  Jouet,  and  the  question  arises, 
is  he,  either  in  law  or  equity,  vested  with  such  a  title  to  the  prem- 
ises in  question,  as  to  enable  him  to  make  a  lease? 

By  the  first  section  of  the  act  of  December  11,  1778,  forfeit- 
ing to  and  vesting  in  the  state  of  New  Jersey,  the  real  estate  of 
certain  fugitives  and  offenders,  it  is  enacted,  that  all  and  singu- 
lar the  lands,  tenements,  and  hereditaments,  of  such  offender; 
all  his  estates  real,  of  what  nature  or  kind  soever,  which  he  shall 
have  been  seized  or  possessed  of,  interested  in,  or  entitled  to, 
shall  bo  forfeited  to,  and  vest  in,  the  state  of  New  Jersey  for  ever. 
Under  this  general  language,  all  the  estate  of  the  offender,  and 
his  right  of  possession,  is  divested  out  of  him,  and  vested  in  the 
state:  and  unless  there  is  some  after  grant,  reconveying  his  in- 
terest in  proper  and  appropriate  terms,  so  as  to  enable  him  to 
maintain  an  ejectment  for  the  same,  the  inquisition  and  judgment 
must  operate  as  a  perpetual  bar. 

There  is  no  question,  in  my  mind,  as  to  the  power  of  the  legis- 
lature to  pass  a  law  authorizing  Jouet,  or  any  other  person,  to 
whom  the  estate  was  given,  to  sue  for  the  same  in  an  action  of 
ejectment.  No  such  authority  has,  however,  been  given,  nor  can 
I  find  that  any  legislative  act  was  passed,  declaring  in  what  man- 
ner or  in  whose  names,  actions  for  the  recovery  of  real  property 
should  be  brought.  The  third  section  of  the  act  of  April  18,  1778, 


FEBRUARY  TERM,  1799.  473 

Den  v.  Lippencott. 

unquestionably  relates  exclusively  to  personal  actions,  as  at  that 
time  no  real  estate  had  been  made  forfeitable.  The  counsel  for 
the  plaintiff,  have  urged,  that  a  debt  secured  by  mortgage  is 
considered  as  a  specialty  debt;  that  the  legislature  having  given 
the  debt,  and  the  right  of  suing  for  it,  the  grantees  are  entitled 
to  all  the  remedies  which  the  state  could  have  employed  for  reduc- 
ing this  claim  into  possession.  Of  this,  I  entertain  no  question, 
the  proposition  is  sound  law  ;  and  I  have  accordingly  considered 
the  case  as  between  the  state  and  the  defendant.  If  the  state 
would  have  been  entitled  to  a  recovery  in  the  present  form  of 
action,  in  the  name  of  Jouet,  I  should  have  no  doubt  that  the 
real  plaintiffs  in  this  case  might  do  the  same. 

But  while  I  acknowledge  that  the  interest  of  the  mortgagee  is 
a  personal  interest;  that  the  daughters  of  Jouet  might  have 
brought  an  action  of  debt  on  the  bond,  in  the  name  of  their  father, 
yet  I  regard  this  as  an  action  of  a  peculiar  kind,  intended  to 
enforce  a  personal  demand  by  proceedings  of  a  real  nature.  The 
act  authorizing  personal  suits,  does  not  in  my  opinion  extend  to 
actions  of  ejectment,  and  thinking  that  in  this  form  of  action  no 
recovery  can  be  had,  I  am  against  disturbing  the  verdict.  * 


DEN  ex  dem.  LAURENCE  against  LIPPENCOTT. 

A  voluntary  conveyance  to  a  child  or  grandchild,  the  grantor  being  indebted 
At  the  time,  is  void  as  against  creditors. 

A  purchaser  at  sheriff's  sale,  at  the  suit  of  such  creditors,  will  be  protected 
in  his  purchase,  though  he  knew  of  such  previous  voluntary  conveyance. 

Evidence  to  prove  that  the  property  was  purchased  at  an  under  value^  not 
admitted,  because  the  deficiency  of  price  might  have  arisen  from  the  circum- 
stance of  the  fraudulent  deed. 

Where  the  bail  on  a  writ  of  error  in  an  action  of  ejectment  are  excepted  to, 
they  must  justify  in  double  the  annual  value  of  the  lands,  or  the  whole  may  be 
treated  as  a  nullity. 

At  the  trial  of  this  ejectment  at  the  Gloucester  Nisi  Prius,  in 
October,  1798,  before  Kinsey  C.  J.  and  Smith  J.  the  following 
points  were  resolved. 

1.  That  a  voluntary  conveyance  to  a  child  or  grandchild,  the 
grantor  being  indebted  at  the  time,  is,  as  against  creditors,  fraud- 
ulent within  the  purview  of  "  the  act  for  the  prevention  of  frauds 

*  See  ante,  note  to  the  case  of  Jouet  v.  Watkins. 


474  NEW  JEKSEY  SUPREME  COURT. 

Den  v.  Lippencott. 

and  perjuries,"  (Pat.  133)  passed  November  26,  1794.  The  cir- 
cumstance, that  there  was  a  good  consideration,  as  blood  does  not 
bring  it  within  the  proviso  contained  in  the  sixth  section.  The 
court  said  it  was  unnecessary,  in  such  case,  to  prove  any  actual 
intent  on  the  part  of  the  grantor  to  act  in  a  fraudulent  manner. 
The  moral  fraud  is  not  essential,  but  the  legal  fraud  is  the  legal 
conclusion  upon  the  fact,  that  the  effect  of  the  instrument,  if 
supported,  will  be  to  deprive  creditors  of  their  remedy. 

2.  A  purchaser  of  the  land  thus  voluntarily  conveyed,  at  a 
sheriff's  sale  on  an  execution  at  the  suit  of  the  creditor,  although 
he  knew  of  such  voluntary  conveyance,  will  be  protected  in  his 
purchase.     The  conveyance  was  fraudulent  and  void,  and  the 
knowledge  of  a  void  grant  cannot  vitiate  a  good  title :  the  cred- 
itor, by  his  execution,  has  avoided  the  deed  quo  ad  hoc,  and  the 
purchaser  stands  in  his  place. 

3.  The  court  refused  to  permit  the  defendant  to  give  evidence, 
that  at  the  sheriff's  sale  the  property  was  bought  at  an  under 
value.     The  existence  of  the  conveyance  which  the  law  adjudges 
fraudulent,  was  known ;  no  one  likes  to  purchase  a  title  involved 
in  disputes,  and  which  must  be  enforced  by  action :  the  inade- 
quacy of  price  was,  in  all  probability,  the  consequence  of  the 
fraudulent  grant  under  which  /the  defendant  claimed,  and  of 
which  he  cannot  be  permitted  to  avail  himself. 

Judgment  for  plaintiff. 

In  February  1799,  on  a  motion  for  leave  to  take  out  execution. 

Leake,  for  plaintiff.  A  writ  of  error  was  brought  on  this  judg- 
ment, and,  bail  being  filed,  it  was  excepted  to,  November  28, 
1798,  of  whiph  notice  was  regularly  given. 

The  defendant,  himself,  having  entered  into  the  recognizance 
on  December  12th,  1799,  gave  a  bond,  with  one  Hammill,  for 
8100,  conditioned  for  the  payment  of  costs.  February  23,  1799, 
an  exception  was  filed  as  to  Hammill. 

The  first  ground  on  which  this  application  is  made,  is,  that 
the  writ  of  error  is  a  nullity,  no  bail  having  been  filed.  Under  the 
act  of  February  18,  1747-8,  before  any  writ  of  error  is  allowed, 
the  plaintiff  in  error  must  give  security  to  pay  costs  to  the  other 
party,  in  case  the  judgment  be  affirmed.  Exceptions  have  been 
filed  to  the  sufficiency  of  both,  and  no  bail  is  therefore  in  fact  filed. 


SEPTEMBEE  TERM,  1799.  475 

Den  v.  Inslee. 

The  sura  stated  in  the  recognizance  is  sufficient.  The  yearly 
rent  of  the  premises  in  controversy  are  ascertained  to  be  £40,  and 
the  costs  have  been  taxed  at  £20.  By  the  statute  of  16  and  17  Car. 
5,  c.  8,  sec.  3,  in  cases  of  ejectment,  the  plaintiff  in  error  shall  be 
bound  to  the  other  party  in  such  reasonable  sum  as  the  court  to 
which  the  writ  of  error  is  directed  shall  think  fit.  By  the  practice 
of  the  courts  of  Westminster,  this  reasonable  sum  is  fixed  at  double 
the  annual  rent.  2  Cromp.  364.  Thomas  v.  Goodtitle,  4  Bur.  2501. 
The  act  in  Allinson  is  affirmative,  and  does  not  alter  the  practice 
which  had  before  obtained  in  our  courts  under  the  statute. 

Woodruff,  contra. 

Per  curiam.    Take  your  execution.* 


[SEPTEMBER  TERM,  1799.] 


DEN  ex  dem.  EOSSELL  against  INSLEE. 

The  defendant  in  ejectment  will  not  be  compelled  to  enter  security  for  costa, 
on  the  ground,  that  he  had  removed  out  of  the  state  after  entering  into  the 
common  rule. 

LEAKE,  for  the  plaintiff,  had  moved,  that  the  defendant  might 
be  ordered  to  enter  security  for  costs  in  this  ejectment. 

In  support  of  the  motion,  he  contended,  that  the  court  always 
assumed  a  conti'ol  over  the  action  of  ejectment,  and  in  their  dis- 
cretion compelled  the  parties  to  conform  to  such  terms  as  the 
circumstances  of  the  case  rendered  it  expedient  or  equitable  to 
impose.  Under  the  rule  established  in  this  court  in  November, 
1794,  if  on  the  trial  in  ejectment  the  defendant  shall  refuse  to 
confess  lease,  entry,  and  ouster,  he  shall  be  compelled  to  pay 
costs.  After  these  costs  have  been  demanded  and  refused,  the 
court  will  compel  the  payment  of  them  by  attachment.  Run- 
nington  on  Eject.  132-3.  This  was  formerly  confined  to  the 
Court  of  Common  Pleas,  but  now,  where  the  plaintiff  is  non- 
suited for  the  defendant's  not  confessing  lease,  entry,  and  ouster, 
the  plaintiff  must  proceed  in  the  King's  Bench,  also,  by  attach- 
ment upon  the  consent  rule.  2  Tidd's  Pr.  905.  2  Sellon's  Pr. 

*  See  ante  Den  ex  dem.  Lockyer  v.  De  Hart,  and  the  note. 


476  NEW  JERSEY  SUPREME  COURT. 

Den  v.  Inslee. 

111.  Running.  75.  (See  Christian's  note  3,  on  SI.  Com.  205) 
Lord  Mansfield  (3  Bur.  1295)  declared,  "that  he  had  it  at  heart 
to  have  the  practice  upon  ejectments  clearly  settled,  upon  largo 
and  liberal  grounds  for  advancement  of  the  remedy,"  and  "that 
the  great  advantage  of  this  fictitious  mode  of  proceeding  is,  that 
being  under  the  control  of  the  court,  it  may  be  so  modelled  as  to 
answer  in  the  best  manner  every  end  of  justice  and  convenience." 
In  this  case,  when  the  defendant  was  admitted  to  enter  into 
the  common  rule,  he  was  within  the  jurisdiction  of  this  court,  and 
amenable  to  the  process  of  attachment;  he  has,  since  that  time, 
removed  into  the  state  of  New  York,  and  there  exists  no  power 
in  the  court  to  compel  his  compliance  with  the  consent  rule,  or 
to  punish  his  contumacy  by  enforcing  the  payment  of  costs.  If 
the  court  has,  in  any  case,  a  power  to  impose,  terms  upon  a  party 
claiming  a  favour,  it  ought  to  be  exercised  here,  because  tho 
plaintiff  will  otherwise  be  remediless. 

fi.  Stockton,  contra.  There  is  no  precedent  to  be  found,  either 
in  the  English  books  or  our  own  practice,  to  authorize  such  a 
cofirse.  The  defendant  has  a  clear  and  unquestionable  right,  in- 
dependent of  any  arbitrary  rules  of  practice,  to  continue  in  the 
possession  of  his  property  until  legally  evicted  by  due  course  of 
law.  With  as  much  propriety  might  the  defendant,  in  any  other 
action,  be  called  upon  to  enter  security  for  costs:  the  plaintiff 
may  have  a  legal  right  to  demand  them,  and  yet  be  without  the 
means  of  enforcing  that  right.  The  action  of  ejectment  is,  it  is 
true,  completely  under  the  control  of  the  court,  because  being 
wholly  a  fictitious  proceeding;  unless  the  court  did  interpose  its 
authority,  any  one  might  be  ousted  from  his  possession  without 
any  legal  adjudication  upon  his  title.  No  instance,  however,  has 
been  or  can  be  produced,  in  which  courts  have  exercised  such  a 
power,  and  we  solemnly  protest  against  any  such  innovation,  at 
this  time  of  day,  upon  the  established  rules  of  proceeding. 

KINSEY  C.  J.  It  is  clear  that  an  ejectment  is  almost  entirely 
a  fictitious  proceeding,  introduced  from  views  of  general  conve- 
nience, which  courts  have  assumed  the  power  of  moulding,  so 
as  to  answer  tho  purposes  of  justice,  and  in  order  to  prevent  a 
fiction  from  working  injustice  to  any  one. 

If  the  lessor  of  tho  plaintiff  removes  out  of  the  jurisdiction  of 
the  court,  after  the  commencement  of  the  action,  wo  have  com- 


SEPTEMBER  TEEM,  1799.  477 

Den  v.  Inslee. 

pelled  him  to  give  security  for  costs.  Such  a  case,  however,  is 
not  within  the  terms  of  any  act  of  assembly,  but  is  founded 
upon  this  discretionary  power,  claimed  and  exercised  by  the 
court  in  this  species  of  proceeding,  to  effectuate  the  objects  of 
justice.  It  appears  to  me,  that  in  order  to  attain  the  same  ends, 
we  have,  and  may  exercise  the  same  control  over  the  defendant. 
We  will  not  permit  him  to  defend  the  suit,  without  entering  into 
such  terms  as  it  has  thought  fit  to  establish  in  general  cases: 
and  when  other  circumstances  arise,  requiring  a  further  exercise 
of  our  controling  powers,  I  am  at  a  loss  to  conceive  upon  what 
grounds  we  are  to  be  restricted  in  so  doing. 

When  the  defendant  entered  into  the  rule,  he  was  a  resident; 
we  admitted  him  to  make  himself  a  party  to  the  cause,  because 
he  undertook  to  pay  costs,  and  we  had  the  means  of  compelling 
a  compliance  with  this  undertaking.  He  has  since  removed 
beyond  our  jurisdiction  and  control,  and  the  court  not  bein.; 
able  in  any  other  manner, than  in  the  one  suggested  on  the  part 
of  the  plaintiff,  to  compel  the  defendant's  compliance  with  hi^ 
engagement,  have  a  power  in  the  fair  exercise  of  their  discro- 
tion  to  adopt  that. 

If  any  one  applies  to  be  made  defendant  in  ejectment,  agaimt 
whom  the  court  cannot  enforce  the  payment  of  costs,  it  is  clea  t 
to  me,  that  he  ought  not  to  be  admitted  without  giving  security  . 
If  the  same  incapacity  accrues  afterwards,  in  consequence  of  hid 
own  voluntary  act,  it  strikes  me  that  the  same  course  should  be 
pursued.  The  object  in  the  first  instance  is,  to  ensure  the  plain- 
tiff  from  being  exposed  to  unnecessary  expense,  and  being  unfairly 
dealt  with ;  the  same  reasons  applying  with  equal  force  in  the 
latter  case,  seem  to  call  for  the  same  interposition  of  the  court. 

SMITH  J.  concurred. 

K.IRKPATRICK  J.  and  BOUDINOT  J.  being  against  it,  Leake  took 
nothing  by  his  motion. 


478  NEW  JEESEY  SUPEEME  COUET. 

Den  v.  Fen. 

DEN  ex  dem.  NATHAN  against  FEN— Burntt  tenant. 

The  mortgagee  may  be  admitted  to  defend  in  an  action  of  ejectment,  unless 
the  lessor  of  the  plaintiff  will  discharge  the  mortgage. 

M'WHORTER,  on  behalf  of  himself,  and  Elias  Boudinot,  esquire, 
who  had  a  mortgage  on  the  premises  in  controversy,  in  this 
ejectment,  which  had  become  forfeited  since  the  action  was 
brought,  moved,  that  they  might  be  admitted  to  defend  the  suit 
on  the  authority  of  Espinasse  783,  and  Loveback  ex  dem.  Norris 
v.  Dancaster,  3  T.  R.  783. 

Per  curiam.  If  the  lessor  of  the  plaintiff  thinks  proper,  he 
may  bring  into  court  the  money  due  on  the  mortgage  the  next 
term,  or  in  the  mean  time  discharge  the  mortgage;  otherwise, 
the  mortgagees  may  be  admitted  to  defend. 

Eule  nisi. 

NOTE. — The  counsel  in  Fairclaim  v.  Shamtitle,  3  Bur.  1293, 
said,  the  landlord  claiming  to  be  admitted  to  defend,  must  have 
actually  received  rent,  "  except  in  cases  of  mortgages  after  for- 
feiture, and  the  like,"  which  doctrine  is  further  stated  p.  1299. 
Runnington  68,  (edit,  of  1792)  says,  generally,  "it  should  seem 
that  a  mortgagee  who  is  out  of  possession,  may  be  admitted  to 
defend  on  the  tenant's  refusal;  though,  in  one  case,  it  is  said  to 
have  been  otherwise  determined."  See  Barnes  193-4.  In  Doe 
ex  dem.  Tilyard  v.  Cooper,  8  T.  C.  645,  the  court  permitted  a 
mortgagee  to  be  made  defendant  in  an  ejectment  with  the  mort- 
gagor. 2  Setton's  Pr.  1067.* 

*  In  note  z.  to  Mr.  Adamt'  Treatise  on  Ejectment,  p.  231,  he  seems  to  consider 
this  circumstance  of  the  mortgagee's  having  previously  received  rent,  immater- 
ial. And  in  Coleman's  case,  Mese  56,  it  is  said:  "A  person  may  be  admitted  to 
defend  as  landlord,  between  whom  and  the  defendant  a  priority  of  interest 
exists,  although  he  does  not  receive  rents,  which  is  not  the  true  test."  In  Jack- 
son v.  Babcock,  17  John.  112,  it  is  decided,  that  the  assignee  of  a  mortgage  may 
be  let  in  to  defend  as  landlord. 


APPENDIX. 


[The  Reporter,  having  been  favoured  by  the  Secretary  of  State  with  copies 
of  the  original  ordinances  constituting  our  Justices'  Courts,  Courts  of  Commoa 
Pleas,  and  Supreme  Court,  has  deemed  them  worthy  of  insertion  in  this  volume, 
particularly  as  they  shew  the  original  extent  of  the  jurisdiction  of  these  courte, 
and  remain,  as  far  as  he  has  been  able  to  discover,  unrepealed  ] 


AN  ORDINANCE  concerning  Justices'  Courts,  County  Courts  for  holding  Pleas, 
and  Supreme  Court. 

Made  April  29,  1723. 

GEOKGE,  by  the  grace  of  God,  of  Great  Britain,  France,  and 
Ireland,  King,  Defender  of  the  Faith,  &c.  %'fttff8i9l  WE  have 
thought  fit,  by  advice  of  the  most  honourable  the  Lords  of  our 
Privy  Council  at  our  court  at  St.  James',  on  the  twentieth  day 
of  January,  in  the  eighth  year  of  our  reign,  to  disallow  some 
laws  or  acts  of  General  Assembly  of  the  Province  of  New  Jersey, 
and  enacted  by  the  Governor,  Council,  and  Assembly  of  that 
Province,  in  General  Assembly  met  and  assembled,  viz. :  One 
act  entitled,  "An  act  for  shortening  lawsuits  and  regulating 
the  practice  of  the  law."  One  other  act  entitled,  "An  act  for 
acknowledging  and  recording  of  deeds  and  conveyances  of  land 
within  each  respective  county  of  this  Province."  And  one  other 
act  entitled,  "An  act  for  enforcing  the  observation  of  the  ordi- 
nances for  establishing  fees  within  this  Province."  'jkuft  tt'hcffatf 
the  late  ordinance  for  establishing  courts  of  judicature  in  the 
same  Province,  was  in  some  measure  made  conformable  to  one  of 
the  said  laws,  so  as  aforesaid  disallowed,WE  have  therefore  thought 
fit  to  ordain,  and  WE  do  hereby  ordain,  direct,  and  empower  every 
justice  of  the  peace  residing  within  any  town  or  county  within 
the  Province  of  Nova  Cffisarea,  or  New  Jersey,  to  have  cogni- 
zance of  all. causes  and  cases  of  debt  and  trespass  of  the  value 
of  forty  shillings,  or  under;  all  which  causes  and  cases  shall  and 
may  be  heard,  tried,  and  finally  determined,  without  a  jury,  by 
any  of  the  said  justices  of  the  peace,  as  aforesaid,  excepting  such 
cases  where  the  titles  of  land  are,  or  may  be  any  wise  concerned. 
And  WE  do  hereby  further  ordain  and  direct,  that  the  process  of 
VOL.  i.  (I) 


APPENDIX. 


warning  against  freeholders  and  inhabitants  shall  be  by  summons 
under  the  hand  of  any  of  the  said  justices  of  the  peace,  directed 
to  the  constables  of  the  town  or  precinct,  or  to  any  deputed  by 
him,  where  the  party  complained  against  doth  dwell  or  reside; 
which  summons  shall  be  served  upon  the  person,  or  left  at  the 
house  or  place  of  abode  of  the  defendant,  four  days,  at  least, 
before  the  time  appointed  for  the  hearing  of  the  plaint.  And  in 
case  the  defendant  does  not  appear  at  the  time  appointed,  on 
affidavit  made  by  the  said  constable  or  his  deputy,  that  the  said 
summons  was  duly  served  on  the  defendant's  person,  or  left  at 
the  defendant's  house  or  place  of  abode,  with  some  of  family  of 
the  said  defendant,  the  justice  granting  such  summons  may,  and 
shall  not  otherwise,  proceed  to  hear  such  causes  or  cases,  and 
determine  the  same  in  the  defendant's  absence,  and  grant  execu 
tion  thereupon,  directed  to  the  said  constable,  or  his  deputy, 
to  be  laid  upon  the  defendant's  goods  and  chattels,  and,  for  wani 
thereof,  upon  the  person  of  the  defendant,  which  he  is  hereby 
empowered  and  directed  to  execute  accordingly.  And  WE  o& 
hereby  further  ordain  and  direct,  that  the  process  against  a  a 
itinerant  person,  inmate,  or  foreigner,  shall  be  by  warrant  froifl 
any  justice  of  the  peace,  to  be  served  by  any  constable,  or  his 
deputy,  within  that  county,  who  shall,  by  virtue  thereof,  arreot 
the  party,  and  him  safely  keep,  till  he  shall  be  carried  before  the 
said  justice,  who  shall,  and  may,  immediately  hear,  try,  and 
finally  determine  all  such  causes  and  cases  of  debt  and  trespass, 
as  aforesaid,  to  the  value  of  forty  shillings,  or  under,  by  awarding 
judgment  and  execution  ;  and  if  payment  be  not  immediately 
made,  the  constable  shall  deliver  the  said  party  to  the  sheriff  of 
that  county,  who  is  hereby  empowered  and  required  to  take  him 
into  custody,  and  him  safely  keep,  until  payment  be  made  of  the 
same,  with  charges:  Provided  always,  and  WE  do  hereby  further 
ordain  and  direct,  that  an  appeal  shall  be  allowed  to  the  jus- 
tices of  the  same  county,  at  the  next  General  Court  of  Sessions 
of  the  Peace  held,  for  any  sum  upwards  of  ten  shillings,  in  all 
causes  and  cases  cognizable  before  them,  guifl  ttfhma;*  WE  are 
given  to  understand,  that  many  of  the  inhabitants  of  our  said 
Province  live  remote  from  the  places  in  which  WE  have  appoii;U-l 
our  Supreme  Court  to  be  held,  and  that  it  will  be  of  great  cane 
and  convoniency  to  the  said  inhabitants  that  a  court  be  held  in 
each  county  for  the  hearing,  trying,  and  determining  of  such 


APPENDIX.  iii 


actions  and  causes  of  actions  as  shall  arise  within  each  of  the 
said  counties,  and  determinable  by  juries  of  the  same.  WE 
being  willing  and  desirous  to  promote  the  ease,  well  being,  and 
security  of  all  our  loving  subjects,  inhabitants  of  the  said  Prov- 
ince of  New  Jersey,  and  that  right  and  justice  may  be  dis- 
tributed amongst  them,  and  that  all  matters  of  difference  may 
be  determined  by  their  equals  and  neighbours,  as  nigh  as  the 
present  circumstances  of  our  said  Province  will  admit,  according 
to  the  good  and  ancient  laws  and  usages  of  our  Kingdom  of  Great 
Britain,  do  ordain  and  direct,  that  the  County  Court  for  holding 
of  Pleas  continue  to  be  held  and  kept  in  each  of  the  several  and 
respective  counties  of  our  Province  of  New  Jersey,  to  hear,  and 
by  the  verdict  of  twelve  good,  honest,  and  lawful  freeholders,  in- 
habiting within  the  said  respective  counties  where  the  said  court 
is  held,  to  try  and  determine  all  suite,  controversies,  quarrelf/, 
and  differences  that  may  arise  within  the  said  counties  between 
our  loving  subjects,  for  any  sum  above  the  value  of  forty  shil- 
lings, (causes  wherein  the  right  or  title  of  any  lands,  tenements, 
or  hereditaments,  in  any  wise  concerned,  excepted)  which  said 
suits,  controversies,  quarrels,  and  differences  shall  be  tried  and 
determined  in  the  said  courts  by  a  jury  of  twelve  good  and  law- 
ful freeholders  as  aforesaid,  and  not  otherwise.  <3wfl  WbtftBJf 
it  may  so  happen,  that  by  the  craft  and  artful  practice  of  the 
persons  concerned  in  the  said  causes,  quarrels,  and  controver- 
sies triable  in  the  said  County  Court  for  holding  of  Pleas,  the 
causes,  quarrels,  and  controversies  may  be  drawn,  contrary  to 
our  royal  intention,  from  the  examination  of  the  jury,  to  the  great 
delay  and  hindrance  of  justice.  And  it  may  also  happen,  that 
upon  special  verdicts  given  in  our  said  County  Courts  for  holding 
Pleas,  and,  upon  the  pleadings,  matters  of  law  may  arise,  WE 
have  therefore  thought  fit  to  ordain  and  direct,  that  on  any  spe- 
cial verdict  found  by  a  jury  in  any  of  the  said  courts,  or  any 
joinder  in  demurrer,  or  pleading  whereby  any  point  of  law  may 
be  in  issue,  (such  points  of  law  as  are  necessary  to  be  determined 
by  the  judges  of  the  said  courts,  for  the  regulation  and  informa- 
tion of  the  jury  only  excepted)  that  then,  and  in  such  case,  the 
clerk  of  any  of  the  said  County  Courts  respectively,  where  tho 
same  shall  happen,  shall  make  up  a  record  of  all  the  pleadings, 
or  special  verdict,  as  the  case  may  happen,  and  transmit  the  same 
to  the  Chief  Justice  of  the  Supreme  Court,  at  the  next  Supreme 
VOL.  i.  2  F 


iv  APPENDIX. 


Court  that  shall  sit  after  such  joinder  in  demurrer,  pleading  made, 
or  special  verdict  given,  that  judgment  may  be  given  therein  by 
the  justices  of  our  Supreme  Court.  And  WE  do  hereby  ordain 
and  direct,  that  the  Courts  of  General  Sessions  of  the  Peace  and 
County  Courts  for  holding  Pleas  shall  be  held  and  kept  in  each 
respective  county  within  this  Province  at  the  times  and  places 
hereafter  mentioned. 

[Here  follow  the  times  and  places  of  holding  the  courts  in  the 
different  counties.] 

§Vttfl  tvhma.S  the  times  of  the  sittings  of  our  Supreme  Court 
of  our  said  Province  of  New  Jersey  are  by  experience  found  to 
be  inconvenient,  and  to  occasion  delays  in  the  administration  of 
justice,  to  the  great  hurt  of  several  of  our  loving  subjects  who 
have  causes  depending  in  our  said  Supreme  Court,  for  the  remedy 
whereof  WE  have  thought  fit  to  ordain,  and  do  hereby  ordain  and 
direct,  that  our  Supreme  Court  for  our  Province  of  New  Jersey 
shall  sit  and  be  held  at  the  places  following,  and  shall  sit  at, 
and  during  the  times  hereinafter  mentioned,  that  is  to  say : 
The  next  Supreme  Courts  at  Burlington  and  Perth  Amboy, 
at  the  times  unto  which  the  said  courts  were  last  respectively 
adjourned,  and  afterwards,  on  the  fourth  Tuesday  of  September, 
at  Burlington ;  the  second  Tuesday  of  November,  at  Perth 
Amboy ;  the  fourth  Tuesday  of  March,  at  Burlington ;  and  the 
fourth  Tuesday  of  June,  at  Perth  Amboy,  yearly ;  which  Su- 
preme Courts  shall  continue  for  any  time  not  exceeding  five 
days,  and  is  hereby  fully  empowered  to  have  cognizance  of  all 
pleas,  civil,  criminal,  and  mixt,  within  this  Province,  as  fully  and 
amply,  to  all  intents,  constructions,  and  purposes  whatsoever,  as 
the  Courts  of  King's  Bench,  Common  Pleas,  and  Exchequer  have, 
or  ought  to  have,  in  our  Kingdom  of  Great  Britain :  in  which 
court  all  and  every  person  or  persons,  whatsoever,  may  com- 
mence and  prosecute  any  action  or  suit,  real,  personal,  or  mixt, 
above  the  value  of  five  pounds.  And  any  action,  suit,  or  con- 
troversy, information,  indictment,  or  prosecution  depending,  or 
on'whifh  judgment  has  been  given  in  any  of  our  inferior  courts, 
may  by  certiorari,  habeas  corpus,  writ  of  error,  or  any  other  law- 
ful writ  or  method,  be  removed  into  our  said  Supreme  Court  from 
any  of  the  inferior  courts  within  our  said  Province.  And  WE  do 
hereby  further  ordain  and  direct,  that  the  office  of  clerk  of  the 
Supreme  Court  of  Judicature  shall  be  kept  by  himself,  or  his 


APPENDIX. 


sufficient  deputy,  at  Perth  Amboy,  in  the  eastern  division,  and 
Burlington,  in  the  western  division.  And  that  all  writs  and  pro- 
cesses of  the  Supreme  Court  for  our  Province  of  New  Jersey 
shall  issue  out  of  the  office  in  either  of  the  said  places  indiffer- 
ently, and  that  the  courts  at  Perth  Amboy  and  Burlington  shall 
take  cognizance  of  such  writs  and  process  accordingly,  never- 
theless, so  that  all  actions  and  causes  of  actions,  arising  in  either 
the  eastern  or  western  divisions  of  this  Province,  are  to  be  tried 
ID,  and  a  verdict  given  by,  jurors  of  that  division  only  in  which 
the  cause  of  action  shall  arise,  as  near  and  agreeable  to  the  laws, 
customs,  and  usages  in  our  Kingdom  of  Great  Britain,  as  may 
be.  IN  TESTIMONY  WHEREOF,  WE  have  caused  these,  our  letters, 
to  be  made  patent,  and  the  seal  of  our  said  Province  to  be  here- 
unto affixed.  88ttttC#£  our  trusty  and  well  beloved  William 
Burnet,  esq.  our  Captain-General  and  Governor  in  Chief  of  our 
Provinces  of  New  Jersey,  New  York,  and  the  territories  thereon 
depending  in  America,  and  Vice-Admiral  of  the  same.  In  Coun- 
cil, this  twenty-ninth  day  of  April,  in  the  ninth  j*ear  of  our  reign, 

Anno  Domini,  1723. 

(GREAT  SEAL.) 

Recorded  in  book  C  of  Commissions,  No.  2,  pages  57-60. 


B 

AN  ORDINANCE  to  lengthen  the  several  terms  of  the  Supreme  Court  of  the 
Province  of  New  Jersey. 

Made  April  8, 1742. 

GEORGE  the  second,  by  the  grace  of  God,  of  Great  Britain, 
France,  and  Ireland,  King,  Defender  of  the  Faith,  &c.  To  all 
our  loving  subjects  of  our  Province  of  New  Jersey,  and  to  all 
others,  whom  it  doth  or  may  concern,  greeting:  Whrrcatf  it  has 
been  represented  unto  our  trust}-  and  well  beloved  Lewis  Mor- 
ris, esquire,  our  Captain-General  and  Governor  in  Chief  of  our 
Province  of  New  Jersey,  in  Council,  that  the  time,  by  ordinance 
appointed  for  sitting  of  our  Supreme  Court  of  our  said  Province, 
is  too  short  for  the  despatch  of  the  business  depending  in  our 
said  court,  and  a  great  hindrance  and  delay  to  the  administra- 
tion of  public  justice:  for  the  remedy  whereof,  for  the  future, 
WE  have  thought  fit  to  ordain,  and  do  hereby  ordain  and  direct, 


vi  APPENDIX. 


that  from  and  after  the  term  of  May  next,  ensuing  the  date  hereof, 
the  several  terms  of  our  said  Supreme  Court  shall  bo,  and  con- 
tinue to  sit  and  be  holden  from  Tuesday,  the  commencement  of 
the  said  term,  to  Tuesday,  in  the  week  thereafter. 

IN  TESTIMONY  &c.    Home. 

Recorded  in  book  A  A  A  of  Commissions,  page  152. 


AN  ORDINANCE  respecting  the  Supreme  Conrt. 

Made  August  1,  1751. 

GEORGE  the  second,  by  the  grace  of  God,  of  Great  Britain, 
France,  and  Ireland,  King,  Defender  of  the  Faith,  &c.  To  all 
our  loving  subjects,  inhabitants,  and  being  within  our  Province 
of  New  Jersey,  and  to  all  others  whom  it  doth  and  may  concern, 
greeting:  3f$hevf&0  it  has  been  represented  unto  our  trusty  and 
well  beloved  Jonathan  Belcher,  esquire,  our  Captain-General 
and  Governor  in  Chief  in  and  over  our  Province  of  Nova  Csesa- 
rea,  or  New  Jersey,  and  territories  thereon  depending,  in  Amer- 
ica, Chancellor  and  Vice-Admiral  in  the  same,  &c.  that  tho 
times  appointed,  by  ordinance,  for  holding  our  Supreme  Court, 
and  our  annual  Circuit  Courts,  in  and  for  the  several  and 
respective  counties  of  our  said  Province,  for  trial  of  such  causes, 
arising  in  the  said  respective  counties,  as  should  bo  brought  to 
issue  in  our  said  Supreme  Court  of  our  said  Province,  have  by 
experience  been  found  to  be  attended  with  divers  inconveniences 
to  the  inhabitants  of  our  said  Province,  gmil  U'liwajS  applica- 
tion hath  been  made  to  our  said  Governor  and  Commander  in 
Chief  for  remedy  therein,  and  WE,  being  desirous  that  the  said 
inconveniences  should  for  the  future  be  remedied,  have  thought 
fit  to  ordain,  and  WE  do  hereby  ordain  and  direct,  that  our  said 
Supreme  Court,  for  our  said  Province  of  New  Jersey,  shall 
begin,  sit  and  bo  held  at  our  city  of  Burlington,  at  tho  several 
times  following,  to  wit:  On  the  first  Tuesday  in  November  and 
the  second  Tuesday  in  May,  in  every  year.  AND  ALSO,  that  our 
said  Supremo  Court,  for  our  said  Province  of  New  Jersey,  shall 
begin,  sit,  and  be  held  at  our  city  of  Perth  Amboy,  at  the  several 
times  following,  to  wit:  On  the  third  Tuesday  in  March  and  the 
second  Tuesday  in  August,  in  every  year,  which  eaid  courts 


APPENDIX.  vii 


shall  sit  and  continue  to  be  held  on  and  from  each  of  the  said 
days  on  which  it  is  to  begin,  daily  and  every  day,  until  the  Sat- 
urday next  immediately  following  the  Tuesday  on  which  it  is  to 
begin,  when  and  on  which  said  Saturday,  our  judges  of  our  said 
court  for  the  time  being,  or  either  of  them,  may  adjourn  our  said 
Supreme  Court  until  the  next  term,  unless  they,  our  said  judges, 
or  either  of  them,  should,  upon  the  account  of  the  multiplicity  of 
business  then  depending,  thinks  it  necessary  and  expedient  to 
prolong  the  said  term,  in  all  which  cases  WE  do  hereby  further 
ordain  and  direct,  that  our  said  Supreme  Court  shall  continue  to 
eit  and  be  holden  from  the  Tuesday  (the  commencement  of  the 
said  term)  to  the  Tuesday  in  the  week  thereafter,  both  days  in-, 
elusive;  in  which  court  there  shall  be  two  return  days  in  each 
of  the  said  terms,  or  sittings,  to  wit:  On  the  first  Tuesday  and 
Thursday  following,  or  on  such  other  day  or  days  as  the  judges 
of  the  said  court  for  the  time  being,  or  either  of  them,  in  their 
discretion,  shall  think  proper  and  expedient  to  appoint.  And  WE 
do  hereby  fully  empower  the  said  Supreme  Court  to  have  cog- 
nizance of,  to  hear,  try,  and  determine  all  pleas,  civil,  criminal, 
and  mixt,  and  all  other  actions  and  suits  in  law  and  equity,  as 
fully  and  amply,  to  all  intents  and  purposes,  whatsoever,  as  all 
or  any  of  our  Courts  of  King's  Bench,  Common  Pleas,  or  Ex- 
chequer, in  that  part  of  the  Kingdom  of  Great  Britain  called 
England,  have,  or  of  right  ought  to  have,  and  any  person  or  per- 
sons may  commence  and  prosecute  any  action  or  suit  in  our  said 
Supreme  Court,  and  may,  by  habeas  corpus,  certiorari,  or  any 
other  legal  writ,  remove  any  action,  suit,  or  plaint  out  of  any  of 
the  respective  County  Courts,  Sessions  of  the  Peace,  or  any 
other  inferior  court  depending  or  to  be  depending,  and  any 
judgment  thereupon  given  or  to  be  given  in  any  of  the  said 
courts :  Provided  always,  that  the  commencing  and  prosecuting 
any  action,  suit,  or  plaint  in  the  said  Supreme  Court,  and  the 
removal  of  any  information,  indictment,  or  any  cause,  matter,  or 
thing  to  be  removed  from  any  of  the  said  County  Courts,  Sessions 
of  the  Peace,  or  any  other  inferior  courts,  into  the  said  Supreme. 
Court,  be  so  commenced,  prosecuted,  and  removed,  according 
to,  and  as  near  as  may  be,  agreeable  to  the  laws  in  force  in 
that  part  of  the  Kingdom  of  Great  Britain  called  England,  and 
the  laws  of  our  Province  of  New  Jersey  not  repugnant  thereto. 
And  WE  do  hereby  further  ordain  and  direct,  that  the  office  of 


viii  APPENDIX. 


clerk  of  the  said  Supreme  Court  of  Judicature  shall  be  kept  by 
the  Secretary,  or  his  sufficient  deputy,  at  Perth  Amboy  in  the 
eastern  division,  and  Burlington  in  the  western  division,  and  that 
all  writs  and  process  of  the  Supreme  Court  for  our  Province  of 
New  Jersey  shall  issue  out  of  either  of  the  said  places  indiffer- 
ently ;  and  that  the  courts  of  Perth  Amboy  and  Burlington  shall 
take  cognizance  of  such  writs  and  process  accordingly,  never- 
theless, so  that  all  actions  and  causes  of  actions,  arising  in  either 
of  the  eastern  or  western  division  of  the  Province,  are  to  be  tried 
in,  and  a  verdict  given  by  jurors  of  that  division  only  in  which 
the  cause  of  action  shall  arise,  as  near  and  as  agreeable  to  the 
laws,  and  customs,  and  usages  of  our  Kingdom  of  Great  Britain, 
as  may  be ;  and  in  whichsoever  of  the  divisions  the  venue  is  laid, 
there,  that  is  to  say,  the  secretary's  office  of  each  division,  shall 
the  declaration,  pleas,  and  all  other  pleadings  in  that  cause  be 
filed.  And  WE  do  further  ordain,  that  our  justices  of  our  Supreme 
Court  for  the  time  being,  or  either  of  them,  shall  annually,  and 
every  year,  go  into  every  county  in  our  said  Province,  and  there 
hold  a  court  for  trial  of  such  causes  arising  in  the  several  and 
respective  counties,  as  are  brought  to  issue  in  the  said  Supreme 
Court,  which  causes  our  justices,  or  either  of  them,  is  hereby 
empowered  to  hear  and  try  by  jurors  of  the  said  counties,  and 
on  any  verdict  in  any  of  the  said  counties  within  our  said  Pro- 
vince, judgment  to  give  at  the  Supreme  Court  of  Judicature  to  be 
holden  at  our  city  of  Perth  Amboy,  for  the  eastern  division,  or 
city  of  Burlington,  for  the  western  division,  next  after  such  ver- 
dict given  in  any  of  the  said  counties  within  our  said  Province  of 
New  Jersey ;  which  courts  for  the  trial  of  causes  shall  be  held 
in  our  several  counties,  (except  Cape  May)  for  and  during  a  term 
not  exceeding  five  days.  And  WE  do  hereby  further  ordain  and 
direct,  that  the  time  and  place  for  holding  the  yearly  Circuit 
Courts  in  the  several  counties  of  our  said  Province,  for  the  trial 
of  such  causes  as  aforesaid,  shall  be  such  as  are  hereafter  men- 
tioned, that  is  to  say :  That  the  said  Circuit  Courts  for  our  coun- 
ties of  Bergen,  Essex,  Monmouth,  Somerset,  and  Morris  shall 
be  held  at  such  times  in  the  months  of  September  or  October, 
yearly,  in  such  places  in  each  of  the  said  respective  counties  as 
our  judges  of  our  said  Supreme  Court  for  the  time  being,  or 
either  of  them,  shall  yearly,  in  the  next  preceding  term,  or  at  any 
other  time  appoint  for  that  purpose;  and  that  the  said  Circuit 


APPENDIX. 


Courts  of  our  counties  of  Hunterdon,  Gloucester,  Cumberland, 
and  Cape  May  shall  be  held  at  such  times  in  the  months  of  April 
or  May  yearly,  and  at  such  places  in  each  of  the  said  respective 
counties,  as  our  judges  of  our  Supreme  Court,  for  the  time  be- 
ing, or  either  of  them,  shall  yearly,  in  the  next  preceding  term, 
or  at  any  other  time  appointed  for  that  purpose :  Provided 
always,  and  it  is  hereby  further  ordered  and  directed,  that  the 
causes  arising  in  the  county  of  Cape  May  shall  be  tried  in  the 
county  of  Cumberland.  And  WE  do  hereby  require  and  com- 
mand our  high  sheriffs,  justices  of  the  peace.,  the  mayor  and  al- 
dermen of  any  corporation  within  any  of  our  respective  counties 
of  our  said  Province,  all  officers,  magisterial  or  ministerial,  within 
our  said  respective  counties,  to  be  attending  upon  our  said  jus- 
tices of  our  said  Supreme  Court,  or  any  one  of  them  (going  the 
circuit),  as  well  at  the  times  of  their  or  his  coming  into  and  leav- 
ing the  said  respective  counties,  as  also  during  their  stay  upon 
the  circuit,  within  any^  of  the  said  counties,  on  pain  of  our  highest 
displeasure,  and  of  being  proceeded  against,  according  to  law, 
for  their  or  any  of  their  neglect  or  contempt  of  our  royal  autho- 
rity and  command  hereby  signified.  IN  TESTIMONY  WHEREOF, 
WE  have  caused  the  great  seal  of  our  said  Province  of  New 
Jersey  to  be  hereunto  affixed.  SlVitnc.e.S'  our  trusty  and  well 
beloved  Jonathan  Belcher,  esquire,  our  Captain-General  and 
Governor  in  Chief  in  and  over  our  said  Province  of  Nova  Cse- 
sarea,or  New  Jersey,  and  territories  thereon  depending  in  Amer- 
ica, Chancellor  and  Vice-Admiral  of  the  same,  &c.  at  our  city  of 
Burlington,  the  first  day  of  August,  in  the  twenty-fifth  year  of 
our  reign,  Anno  Domini,  1751. 

Recorded  in  book  A  A  A  of  Commissions,  page  313. 


INDEX 


TO  THE  PRINCIPAL  MATTERS. 


A 

ABATEMENT. 

1.  It  is  a  good  plea  in  abatement  to 
an  indictment  for  a  rape,  that  one  of 
the  grand  jurors  by  whom  the  bill  was 
found,  was  not  a  freeholder  as  he  is 
directed  to  be  by  the  act  of  assembly. 
State  v.  Rockajellow,  332 

2.  Advantage  must  be  taken  of  the 
non-filing  of  a  refunding  bond,  by  a  plea 
in  abatement.     Cowell  v.  Oxford,    432 


ABSENT   AND    ABSCONDING 
DEBTORS. 

See  ATTACHMENT,  1. 


ACCOUNT. 
See  EVIDENCE,  V.,  2. 

ACTION. 

1.  An  action  upon  the  third  section 
of  the  act  of  25th  February,  1820,  (Rev. 
Laws  689.)  "  for  restraining  the  plain- 
tiff from  navigating  the  waters  between 
the  ancient  shores  of  New  York,  and 
New  Jersey,"  is  not  a  local  but  a  transi- 
tory action.     Gibbons  v.  Ogden,      285 

2.  An  action  will  not  lie  to  recover 
back  an  unreasonable  amount  of  costs, 
which  had  been  taxed  and  paid :   the 
proper  remedy  is  by  relaxation,    Allen 
V.  Hickson,  409 

See  MEADOW  BANK,  1. 

ACTION  ON  THE  CASE. 

1.  An  action  on  the  case  lies  against 
a  constable,  for  not  returning  a  writ  of 
attachment.  Stout  v.  Hopping,  125 

VOL.  I. 


2.  Under  the  act  of  the  25th  of  Feb- 
ruary, 1821,  entitled,  "A  further  sup- 
plement to  the  act  entitled  an  act  to 
preserve  and  support  the  jurisdiction 
of  the  state,"  a  citizen  of  this  state,  who 
has  been  restrained  by  an  injunction 
out  of  the  Court  of  Chancery  of  New 
York,  from  navigating  with  his  steam- 
boat, the  waters  between  the  ancient 
shores   of   the  states  of    New  Jersey 
and  New  York,  may  recover  damages, 
with   triple  costs,  against  the  person 
so  restraining  him.     Gibbons  v.  Liv- 
ingston, 236 

3.  An  action  on  the  case  may  be 
maintained  by  a  father,  for  a  personal 
injury  done  to  his  child  and  servant, 
under  a  per  quod.     Vanhorn  v.  Free- 
man, 322 

4.  Though  the  child  may  be  living  in 
another  family,  at  the  time  she  receives 
the  injury,  such  action  is  maintainable 
under  certain  circumstances:  the  slight- 
est evidence  will  be  sufficient  to  shew 
the  existence  of  the  relation  of  master 
and  servant.  ib. 

5.  An  action  on  the  case  will  lie  for 
debauching  plaintiff's  daughter,  when 
the  damage  laid  in  the  per  quod,  arose 
from  mental  affliction,  she  not  having 
heen  pregnant.     Query.  ib. 

See  COVENANT,  2. 
CONSTABLE,  2. 


ADMINISTRATION  BOND. 

1.  The  non-payment  of  a  void  judg- 
ment cannot  be  assigned,  as  the  breach 
of  the  administration  bond,  in  order  to 
subject  the  administrat&rs  or  their  sure- 
ties, to  the  payment  of  it     Dickerson 
V.  Robinson  et  al.  f  195 

2.  A  creditor  cannot  sue  an  adminis- 
tration bond,  and  assign  for  breach  of 
the  condition  thereof,  the  non-payment 


Xll 


INDEX. 


of  a  debt  upon  a  demand  in  pait;  nor 
even  upon  a  judgment  at  common  law, 
and  a  dcvaslavit  upon  it.  ib. 

3.  But  he  may  sue  an  administration 
bond,  in  order  to  obtain  a  complete  and 
perfect  inventory.    And  he  may  assign 
as  a  breach,  the  not  rendering  a  true 
and  perfect  inventory  of  the  estate  of 
the  intestate,   but  he  cannot  sue  the 
bond  and  get  judgment  upon  it  for  his 
own  individual  debt.  ib. 

4.  If  the  administrator  made  a  final 
settlement,  in  Orphans'  Court,  and  a 
confirmatory  decree  of  said  court  was 
passed  upon  it,  then  the  balance  found 
in  the  hands  of  the  administrator  is  a 
surplus,  to  be  distributed  according  to 
the  statute.     But  there  can  be  no  such 
final   settlement,   until   all   the   debts 
known,  exhibited  and  allowed,  are  paid. 
But  if  the  settlement  was  not  such  final 
settlement,  then  the  creditor  may  assign 
for  breach  of  the  condition,  the  not  mate- 
ing  a  true  and  just  account  of  the  ad- 
ministration/- ib. 

See  EXECUTORS  AND  ADMIHISTRA- 

TOE8,  1. 

AFFIDAVITS. 

See  PRACTICE,  III. 
TRANSCRIPT,  3. 

AGREEMENT. 

An  article  of  agreement,  stating,  that 
the  plaintiff  "hath  granted,  bargained, 
and  sold,  and  did  absolutely  grant,  bar- 
gain, and  sell,"  and  covenanting  to  give 
a  good  and  sufficient  title  at  a  future 
day,  upon  the  defendants  making  cer- 
tain payments,  does  itself  convey  the 
land,  and  the  agreement  to  give  a  good 
title  afterwards,  means  a  mere  formal 
deed,  rather  than  title,  strictly  speak- 
ing. Scott  v.  Conover,  222 

See  COVENANT,  1. 


ALTERATION. 

1.  The  law  does  not  presume,  that 
an  alteration  apparent  on  the  face  of 
a  note,  was  made  after  its  execution. 
Cumberland  Bank  v.  Hall  215 


2.  But  whether  the  alteration  was 
after  or  before  the  execution  of  the  note, 
appears  to  be  a  question  for  the  jury  to 
decide,  ib. 

AMENDMENT. 

1.  A  writ  of  dower  cannot  be  amend- 
ed by  inserting  a  place  of  appearance, 
which  had  been  omitted.    Anon.    166 

2.  The  Court  of  Common  Pleas,  may 
at  the  third  term  after  filing  the  appeal, 
permit  the  transcript  of  the  justice  to 
be  amended  by  affixing  a  seal  thereto, 
provided  no  delay  is  occasioned  thereby. 
Thompson  v.  Sutton,  220 

3.  Where  the  sessions  have  made  a 
return  to  a  certiorari,  which  was  ad- 
judged incomplete,  and  another  return 
made,  the  court  will  not  refer  to  the 
first,  in  order  to  settle  any  ambiguity 
in   the  second.      But  a  rule  may  be 
taken  on  the  sessions  to  amend   their 
second  return.    State  v.  Hunt,        303 

4.  When  statute  of  limitations  plead- 
ed, leave  given  to  add  a  count  stating 
a  promise  oy  administrator.    Saltar  v. 
Saltar,  405 

See  COSTS,  1. 

AMERCEMENT. 
See  NOTICE,  1. 

APPEAL. 

See  AMENDMENT,  2. 

ARBITRATORS. 
See  AWARD,  1,  2,  5,  6. 

ASSIGNMENT. 
See  SET-OFF,  1. 

ASSUMPSIT. 

See  COSTS,  4. 

EQUITY  OF  REDEMPTION,  1. 
MEADOW  BANK,  1. 
PLEADINGS,  I.,  1,  2. 
PRACTICE.  VI ,  4. 
F-74  rr  OF  DEMAND.  5. 


INDEX. 


Xlll 


ATTACHMENT  AGAINST  ABSENT 
AND  ABSCONDING  DEBTORS. 

1.  The  Court  of  Common  Pleas  may 
refuse  to  enter  judgment  in  attachment, 
on  the  report  of  auditors,  and  may  re- 
fer the  matter  back  to  them,  if  they 
think  that  the  auditors  have  made  a 
mistake  in  law.    Berry  v.  Caltet,      179 

2.  This  Supreme  Court  will  not  grant 
a  mandamus  to  compel  the   Common 
Pleas  to  enter  judgment  on  a  report  of 
auditors,  while  a  rule  is  pending  in  that 
court  to  shew  cause  why  the  report 
should  not  be  set  aside.  ib. 

See  CONSTABLE,  1. 

ATTACHMENT  FOR  CONTEMPT. 

The  answer  to  interrogatories,  in  case 
of  an  attachment  for  a  contempt,  should 
be  delivered  ore  tenus.  The  State  v. 
Fisler,  305 

AWARD. 

1.  When  the  arbitrators  expressly  de- 
cline deciding  upon  some  of  the  matters 
submitted,  their  award  is  void.     Rich- 
ards v.  Drinker  et  al.  307 

2.  In   an   action  of   debt  upon   an 
award,  an  award  made  by  the  arbitra- 
tors, though  liable  to  legal  objections, 
is  admissible  in  evidence ;  its  operation 
must  be  determined  in  another  mode.  ib. 

3.  Whenever   the  plaintiff  declares 
upon   an   award  which   is   absolutely 
void,  he  cannot  have  judgment  upon 
it,   though   the    defendant  may   have 
pleaded  erroneously.  ib. 

See  REFEREES,  1. 

4.  The  court  are  not  bound  to  re- 
ceive reasons  filed,  or  affidavits  taken, 
in  support  of  an  objection  on  award,  if 
they  were  taken  at  so  late  a  period  that 
they  could  not  be  answered,  and  the 
witnesses  could  not  be  cross-examined, 
unless  reasons  for  the  delay  are  shewn. 
Ford  v.  Potts.  388 

5.  Under  the  act  of  December,  1794, 
it  ought  to  appear  upon  the  face  of  the 
proceedings,  that  the  referees  were  duly 
sworn.  ib. 


6.  The  act  does  not  make  void  every 
award  of  arbitrators  who  were  not  duly 
sworn ;  it  may  be  waived  by  the  par- 
ties, ib. 

7.  It  does  not  extend  to  cases  which 
had  been  referred  previously  to  its  pass- 
ing, ib. 

8.  The  publication  of  the  award  is 
the  reading  and  filing  it  in  court.    Den 
ex  dem.  Pancoast  v.  Curtis,  415 

See  EVIDENCE,  II.,  5,  6. 
PBACTICE,  VI.,  5. 


BAIL  AND  BAIL  PIECE. 

1.  Defendant  having  been   held  to 
bail,  and  a  judgment  rendered  against 
him  in  another  state,  cannot  be  held 
to   bail  in  this  state  in  an  action  on 
that  judgment.     Lambert  v.  Jones  and 
Moore,  131 

2.  Where  a  person  contracts  a  debt 
in  Pennsylvania,  for  which  he  is  sued 
in  this  state,  and,  during  the  pendency 
of  the  suit  here,  goes  to  Pennsylvania, 
and  being  arrested  by  other  creditors 
there,  takes  the  benefit  of  the  insolvent 
laws  of  that  state,  this  court  will  order 
an  exoneretur  to  be  entered  on  the  bail 
piece  in  the  suit  pending  here.     How- 
land  v.  Stevenson,  149 

3.  In  a  capital  case,  the  court  have  a 
power  to  bail,  but  they  will  not  exer- 
cise this  power  when  there  exist  strong 
doubts  as  to  the  innocence  of  the  pris- 
oner, particularly  after  an  attempt  to 
escape.    State  v.  RockafeUow,          332 

4.  A  judge  of  the  Supreme  Court  of 
the  United  States,  if  arrested  on  a  capias 
ad  respondendum,  in  a  case  of  which  the 
federal  court  has  no  jurisdiction,  shall 
not  be  discharged   on    common   bail. 
Qraiz  v.  Wilson,  419 

2.  Where  the  bail  on  a  writ  of  error 
in  an  action  of  ejectment  are  excepted 
to  they  must  justify  in  double  the 
annual  value  of  the  lands,  or  the  whole 
may  be  treated  as  a  nullity.  Den  ex 
dem.  Laurence  v.  Lippencott.  473 


XIV 


INDEX. 


BANK  NOTES. 


See  DEBT,  1. 


BANK  STOCK,  TAX  ON. 

1,  Under  the  act  of  November  2, 
1810,  "  to  tax  bank  stock,"  although 
the  capital  of  the  bank  may  have  been 
diminished  by  losses,  yet  the  tax  must 
be  paid  on  the  whole  amount  of  the 
capital  stock  subscribed  and  paid  in. 
Neither  the  treasurer,  or  the  Supreme 
Court  could  look  into  the  losses  of  the 
bank  and  make  proportional  allowances 
upon  the  tax  to  be  paid.     Peter  Gordon 
V.  Brunswick  Bank,  100 

2.  But  where  fhe  legislature  reduces 
the  shares  of  the  stock  two-fifths,  it  is 
in  effect  declaring,  that  the  capital  is 
reduced  two-fifths,  and  the  bank  shall 
only  pay  tax  on  the  remaining  three- 
fifths,  ib. 


BEQUEST. 
'See  WILL  No.  1. 

BILL  OF  EXCEPTIONS. 

1.  Where  the  judges  refuse  to  allow 
all  the  evidence  which  has  been  given 
in  a  cause  to  be  inserted  in  a  bill  of 
exceptions,  it  cannot  be  taken  advan- 
tage of  by  writ  of  error.    Budd  v. 
Crea,  370 

2.  It  is  not  necessary    that    there 
should  be  a  trial  of  a  cause  in  order  to 
entitle  a  party  to  a  bill  of  exceptions : 
it  may  be  taken  to  the  opinion  of  the 
court  on  the  cufficiency  of  objections  to 
an  award.    Ford  v.  Pottt,  388 

3.  No  bill  of  exceptions  lies,  in  a 
settlement  case,  to  the  proceedings  of 
the  sessions.     Overseers  of  Newton  v. 
Overseers  of  Gloucester  Town,          405 

BOND. 
Bet  EQUITY  OF  REDEMPTION,  1. 


BOND   AND   WARRANT  OP 
'ATTORNEY. 

1.  Under   the  act  of  January    29, 
1817,  to  prevent  the  fraudulent  con- 
fession of  judgments  "the  affidavit  to 
be  produced  to  the  judge  before  whom 
the  judgment   is  confessed,  need   not 
state    the    true   consideration    of    the 
bond."     It  is  sufficient  if  it  state  that 
the  true  cause  of  action  is  the  bond. 
Burroughs  et  al.  v.  Condit,  300 

2.  It  is  not  necessary  that  the  bond 
and  warrant  to  confess  judgment  should 
be  given  at  one  and  the  same  time,  and 
to  one  and  the  same  person.     It  will 
not  be  error,  though  they  were  given 
to  different  persons  and   at  different 
times.  ib. 

3.  It  is  not  necessary  that  it  should 
appear  upon  the  record,  that  the  bond 
and  warrant  of  attorney  were  produced 
before  the  judge  at  the  time  of  entering 
the  judgment.  ib. 

4.  It  is  not  necessary  that  the  war- 
rant of  attorney  should  be  directed  to 
any  attorney  in  particular.     It  is  suffi- 
cient if  it  is  directed  only  generally  to 
any  citizen  of  New  Jersey.  ib. 


BOND,  REFUNDING. 
See  LEGACY,  2. 

BOOKS  OF  ACCOUNT. 

1.  Charges  of  cash,  paid,  advanced, 
or  lent,  written  on  one  of  the   last 
leaves  of  a  book,  detached  from  the 
daily  entries  and  accounts,  by  sundry 
intervening   blank   leaves,  and   dated 
during  the  time  of  such  entries  and 
accounts,  not  evidence  to  go  to  the 
jury.     Wilson  v.  Wilson,  95 

2.  Books  of  account,  not  evidence 
of  a  single  charge  of  cash,  or  of  two 
or    three    charges    of    cash    standing 
alone.  to. 

3.  Query,  whether  they  are  evidence 
of  cash  at  all.  to. 

See  OHDEE  TO  PBODUCE  BOOKS,  1. 


INDEX. 


CAPIAS  AD  RESPONDENDUM. 
See  INSOLVENT  LAWS,  1. 

CASH,  CHARGES  OF. 
See  BOOK  or  ACCOUNT,  1. 

CENTAGE. 
See  SHERIFF,  3. 

CERTIFICATE  OF  APPRAISERS. 
See  EVIDENCE,  II.,  2. 

CERTIORARI. 

1.  The  obtaining  an  injunction  out 
of  Chancery,  to  prevent  commissioners 
from  proceeding  in  a  certain  matter, 
does    not   deprive   the   party    of   his 
remedy   in   this    court    by    certiorari. 
King  aland  v.  Gould  et  al.  161 

2.  There  being  a   court  of  appeal 
does  not  prevent  the  proceedings  of  the 
inferior  court,  from  being  brought  before 
the  Supreme  Court  by  certiorari.       ib. 

3.  A  certiorari  operates  as  a  superse- 
deas,  and  the  court  below  cannot  pro- 
ceed after  the  certiorari  is  granted,   ib. 

CHALLENGE. 

Where  there  has  been  a  rule  for  a 
struck  jury,  and  upon  the  striking 
before  the  judge,  the  sheriff's  book  is 
objected  to  as  incomplete,  and  the 
objection  overruled,  the  incompleteness 
of  the  book  is  no  ground  of  challenge 
to  the  array  upon  the  trial,  unless  in 
cases  of  imposition  or  fraud,  the 
decision  of  the  judge  who  struck  the 
jury  is  conclusive.  Maffit  ads.  Den  ex 
dem.  Tonkins,  228 

CHARLES  II.  GRANT  OF. 
See  GRANT  I.,  1. 

CHARTER  OF  INCORPORATION. 
Sec  CORPORATION. 


CHARGE. 

See  JUSTICE,  1. 
ERROR,  2. 

CITY. 
See  CORPORATION, 

COGNOVIT  ACTIONEM. 

A  cognovit  actionem  by  executor  is 
an  admission  of  assets.  Den  ex  dem. 
Lockyer  v.  Hart,  450 

COMMON  COUNCIL. 
See  CORPORATION,  2. 

CONFESSION  OF  JUDGMENT. 
See  JUDGMENTS  CONFESSED. 

CONFESSIONS. 
See  EVIDENCE,  III.,  2. 

CONFINEMENT  FOR  DEBT. 
See  INSOLVENT  LAW,  1. 

CONFISCATION. 
See  MORTGAGE,  1. 

CONSTABLE. 

1.  An  action  on  the  case,  lies  against 
a  constable  for  not  returning  a  writ  of 
attachment.     Stout  v.  Hopping,      125 

2.  Constable  has  not  such  a  possess- 
ion of  the  goods  of  the  de/endant,  upon 
the  delivery  of  the  execution,  as  will 
enable  him  to  maintain  trover  for  them. 
He  can  only  acquire  such  possession 
by    making    an    inventory    of   them. 

Wintermute  v.  Hankinson,  140 

CONVEYANCE. 

1.  Conveyance  of  personal  chattels, 
unaccompanied  with  possession,  is  void. 
Chumar  v.  Wood,  155 


XVI 


INDEX. 


2.  A  voluntary  conveyance  from  a 
father    to    his   children,  without    any 
other  consideration  than  natural  affec- 
tion, made  at  the  time  he  is  indebted, 
is  fraudulent,  as  against  creditors.    Den 
ex  dcm.  Lockyer  v.  DC  Hart,  450 

3.  A    voluntary    conveyance   to    a 
child  or  grand  child,  the  grantor  being 
indebted  at  the  time,  is  void  as  against 
creditors.     Den  ex  dem.  Laurence  v. 
Lippencott,  473 

4.  A  purchaser  at  sheriff's  sale,  at 
the  suit  of  such  creditors,  will  be  pro- 
tected in  his  purchase,  though  he  knew 
of   such   previous  voluntary  convey- 
ance, ib. 

5.  Evidence    to    prove     that     the 
property  was  purchased  at  an  under 
value  not  admitted,  because  the  de- 
ficiency  of   price   might  have   arisen 
from  the  circumstance  of  the  fraud- 
ulent debt.  ib. 

CORPORATION. 

1.  Where  the  freeholders  and  inhabi- 
tants of  a  city  are  empowered  by  the 
charter  of  incorporation,  to  raise  by 
tar,  in   the   manner  directed   by   the 
charter,   such   sums  of  money  as  the 
exigencies  of  the  city  may  require,  a 
tax  imposed  for  the  purpose  (as  declared 
in  the  law)  of  raising  money  to  assist 
the  county  in  building  a  court-house, 
on  condition  that  the  board  of  justices, 
Ac.  would   contract  to  allow  the  cor- 
poration the  right  of  buildings  which 
might  be  erected,  is  not  authorized  by 
the  charter,  and  the  law  by  which  it  is 
laid  is  void:  the  board  of  justices,  Ac. 
cannot  legally   enter    into    any   such 
stipulation,  and  therefore  the  founda- 
tion of  the  transaction  fails.     Bergen 
v.  Clarkson,  352 

2.  When  the  common  council  calls 
an  extraordinary  meeting  of  the  free- 
holders, Ac.  it  seems  it  is   bound   to 
state  particularly  the  objects:  but  if  it 
does  specify  a  particular  purpose,  a  law 
imposing   a   tax  for  a  certun  object. 
passed  at  such  meeting,  unless  it  was 
stated  among  the  reasons  for  calling  the 
meeting,  is  void.  ib. 

3.  When   a   tax    has   been   legally 
assessed  by  a  corporation  clothed  with 


competent  powers,  the  proportion  of  it 
which  each  individual  is  bound  to  pay, 
becomes  a  debt  which  may  be  recovered 
in  an  action  at  the  suit  of  the  corpor- 
ation ;  but  unless  they  are  expressly 
authorized  by  the  charter,  summary 
proceedings  by  distress  and  warrant  of 
sale  to  collect  this  tax,  though  directed 
by  a  by-law,  are  void :  and  such  by- 
law is  no  justification  in  an  action  of 
trespass  brought  against  the  officer  exe- 
cuting the  process,  at  the  suit  of  a  person 
whose  goods  have  been  seized.  ib. 

COSTS. 

1.  Irregularity  in  entering  costs  may 
be  corrected,  and  is  not  sufficient  ground 
of  reversal.    Stout  v.  Hopping,       125 

2.  If  an  action,  wherein  the  title  to 
land  must  come  in  question,  be  com- 
menced in  the  Common  Pleas  and  be 
removed   by   the   defendant    into    the 
Supreme  Court,  the  plaintiff  shall  re- 
cover full  costs,  although  the  judgment 
in  his  favour  should  be  less  than  $200. 
Hankineon  v.  Baird,  130 

3.  Where  the  defendant  puU  off  a 
cause  upon  affidavit,  he  will  not  be 
compelled  to  pay  the  costs  of  striking 
a  jury,  which  has  been  summoned  on  a 
rule  of  the  plaintiff  for  that  purpose. 
Kennedy  v.  Nixon,  159 

4.  An  action  will  not  lie  to  recover 
back  an  unreasonable  amount  of  costs, 
which  had  been  taxed  and  paid :   the 
proper  remedy  is  by  relaxation.     Allen 
v.  Hickson,  409 

5.  The  defendant  in  ejectment  will 
not  be  compelled  to  enter  security  for 
costs,   on    the    ground,   that    he   had 
removed  out  of  the  state,  after  entering 
into  the  common  rule.     Den  et  dem. 
Rostell  v.  Intlee,  475 

COURT   FOR   TRIAL  OF  SMALL 
CAUSES. 

1.  Although  the  demand  of  the  plain- 
tiff, if  interest  be  calculated  at  seven 
per  cent,  would  exceed  $100,  yet  if  he 
demands  no  more  interest  than  with  the 
principal  amount*  to  f  100.  the  justice 
may  try  the  cause.  Inhabitant  of 
township  of  Saddle  River  v.  Ooljax,  115 


INDEX. 


xvn 


2.  Justice  bound  to  charge  the  jury 
upon  a  point  of  law,  when  called  upon 
so  to  do.     Todd  v.  Collins,  127 

3.  In  an  action  against  three,  the 
return  of  the  summons  must  shew  on 
whom  it  was  served,  and  on  whom  not, 
and  such  return  cannot  be  dispensed 
with  unless  all  the  defendants  appear. 
Stults  et  al.  v.  Outcalt,  130 

4.  The  justice  cannot  proceed  to  try 
a  cause  in  the  absence  of  the  plaintiff,  if 
he  does,  and  renders  judgment  against 
him  it  will  be  set  aside.     Cavalier  v. 
Doughty,  227 

5.  It   is   necessary    that   it    should 
appear    upon    the    transcript    of   the 
justice's  docket,  that  the  affidavit  re- 
quired   by    the    6th    section    of    the 
supplement   to    the    small    cause    act, 
passed  November  23,  1821,  was  made 
and  filed  with  the  justice,  at  the  time 
of  filing  the  appeal  bond.   Anon.    230 


COURT  OF  QUARTER  SESSIONS. 

1.  The   Court  of    Quarter   Sessions 
may  grant  a  new  trial  upon  the  merits. 
State  v.  Parker,  148 

2.  The  Supreme  Court  cannot  compel 
the  sessions  to  state  the  case,  nor  receive 
affidavits  that  they  acted  improperly. 
Overseers   of  Newton  v.  Overseers  of 
Gloucester  Town,  405 


COURT  OF  COMMON  PLEAS. 

1.  Courts  of  Common  Pleas  have  a 
right  to  set  aside  verdicts,  and  to  grant 
a  new  trial,  and  they  have  this  rignt  as 
well  in  cases  of  appeals  under  statute 
as  in  other  cases.    Squier,  Pierson  et  al. 
v.  Gale,  157 

2.  The  Court  of  Common  Pleas  may 
refuse  to  enter  judgment  in  attachment 
on   the   report  of  auditors,  and   may 
refer  the  matter  back  to  them,  if  they 
think  that  the  auditors  have  made  a 
mistake  in  law.     Berry  v.  Collet,     179 

3.  The  Supreme  Court  will  not  grant 
a  mandamus  to  compel  the  Common 
Pleas,  to  enter  judgment  on  a  report  of 
auditors,  while  a  rule  is  pending  in 


that    court,  to  shew  cause  why    the 
report  should  not  be  set  aside.  t&. 


COVENANT. 
See  STATE  OF  DEMAND,  4. 

1.  Upon  articles  of  agreement  to  pay 
a  certain  sum  in  bank  notes,  debt  will 
not  lie,  for  they  are  not  money.     The 
action  should  be  covenant,  in  which  the 
plaintiff  can  recover  his  real  damages, 
according  to  the  value  of  the  notes. 
Scott  v.  Conover,  222 

2.  A  covenant  that  a  bond  shall  not 
be  prosecuted  until  the  happening  of  a 
certain  event,  cannot  be  pleaded  in  bar 
to  an  action  on  the  bond  brought  before 
the  time,  but  a  special  action  may  be 
brought  and  damages  recovered  for  the 
breach  of  the  covenant.     Hoffman  v. 
Brown,  429 

D 

DAMAGES. 
See  SET-OFF,  4. 

1.  In  an  action  of  trespass,  if  plain- 
tiff recovers  less  than  £50  damages,  he 
shall  not  recover  costs. 

2.  The  rule  is  the  same  whether  the 
damages  are  assessed  by  a  jury  on  the 
trial,  or  on  writ  of  inquiry.     White  v. 
Hunt,  415 


DECLARATION. 

See  PLEADING,  I. 
EVIDEKOE,  III. 


DEBT. 

An  action  of  debt  will  not  lie  upon 
articles  of  agreement,  to  pay  a  certain 
sum  in  bank  notes.  Scott  v.  Conover,  222 

See  CoRroBATios,  3. 


DEVISE. 


See  WILL,  1 


XVI 11 


INDEX. 


DEMURRER. 

In  an  action  upon  the  statute  25th 
Feb.  1820,  (Rev.  Laws  689)  if  the 
declaration  avers,  that  the  restraining 
and  enjoining  was  on  the  waters  of  the 
bay  of  New  York,  and  that  the  said 
•waters  lie  between  the  ancient  shores 
of  New  York  and  New  Jersey,  and  the 
fact  should  be  that  the  waters  of  the 
bay  of  New  York,  are  no  part  of  the 
waters  lying  between  the  ancient  shores 
of  these  states,  yet  this  is  a  matter  of 
fact  to  be  tried  by  the  jury,  and  cannot 
be  determined  by  the  court  upon 
demurrer.  Gibbons  v.  Ogden,  285 


DISCHARGE  UNDER  INSOLVENT 
LAW. 

See  INSOLVENT  LAW,  2. 

DISTRESS  WARRANT. 
Bee  OBDEE  FOB  DISTRESS  WARRAHT,  1. 

DOWER. 

Though  a  woman  entitled  to  dower, 
cannot  enter  upon  land  and  take 
possession  without  suit,  or  before 
assignment,  yet  if  she  is  in  possession, 
legally,  her  right  to  dower  is  a  good  bar 
in  an  action  of  ejectment.  Den  ex  dem. 
Halsey  v.  Dodd,  367 

See  EVIDEKCE,  I.,  3. 

DUKE  OF  YORK'S  GRANT. 
See  GRANT. 

E 

EJECTMENT. 

1.  Though    a    woman    entitled    to 
dower,  cannot  enter  and  take  poswession 
without  suit  or  assignment,  yet  if  she 
is  in  possession,  legally,  her  right  to 
dower  is  a  good  bar  in  an  action  of 
ejectment.     Den   ex  dem.   Halsey    v. 
fiodd,      •  367 

See  JUDGMENT,  I.,  6 

2.  The  interest  of  the  mortgagee  is 
personal  estate,  and  paste*  under  a 


conveyance  of  personal  property,  but 
the  assignee  claiming  under  the  transfer 
by  the  legislature,  of  the  personal 
estate  of  the  mortgagee  may  bring 
ejectment  on  the  mortgage.  Den  ex 
dem.  Jouet  v.  Spinning,  466 

3.  Query,  in  whose  name  the  action 
must  be  brought.  ib. 

4.  The  defendant  in  ejectment  will 
not  be  compelled  to  enter  security  for 
costs,  on  the  ground,  that  he  had  re- 
moved out  of  the  state,  after  entering 
into  the  common  rule.    Den  ex  dem. 
Rossell  v.  Instee,  475 

5.  The  mortgagee  may  be  admitted 
to  defend  in  an  action  of  ejectment, 
unless  the  lessor  of  the  plaintiff  will 
discharge  the  mortgage.    Den  ex  dem. 
Nathan  v.  Fen,  478 

EQUITY  OF  REDEMPTION. 

A  purchase  of  the  equity  of  re- 
demption by  the  mortgagee,  is  not  an 
extinguishment  of  the  attendant  bond, 
and  therefore,  in  an  action  of  assumpsit 
by  the  mortgagor,  against  the  mortga- 
gee for  goods  sold,  the  mortgagee  may 
set  off  his  bond,  notwithstanding  his 
purchase  of  the  equity  of  redemption. 
Cattel  v.  Warwick,  190 

ERROR. 

1.  It  ia  not  enough  to  be  in  doubt, 
the  error  must  be  manifest,  in  order  to 
reverse  a  judgment.    Westcott  v.  Garri- 
son and  Danzenbaker,  132 

2.  Not  error  to  refuse  to  charge  a 
jury,  when  there  is  no  question  of  law 
in  dispute,  or  any  point  on  which  the 
charge  is  requested.  ib. 

See  WRIT  or  EBBOB. 

EVIDENCE. 

I.  What  may  be  proved  by  parol. 
II.  Matters  of  record  and  legal  pro' 
ceedings. 

III.  Confessions  and  declarations. 

IV.  Competency  of  witnesses. 

V.  Evidence  between  partners,  and 
before  arbitrators,  under  plea 
of  payment,  &c. 


INDEX. 


xix 


I.   What  may  be  proved  byparol. 

1.  Parol  evidence  of  a  person's  act- 
ing as  constable,  admissible.     Stout  v. 
Hopping,  125 

2.  In  an  action  on  the  case  against 
a  constable  for  not  returning  a  writ 
of  attachment,  the  judgment  will  not 
be  reversed  because  the  justice  over- 
ruled testimony  offered  by    the    con- 
stable, of  what  became  of  the  property 
attached.  ib. 

3.  The  fact  of  a  widow's  having  no 
title  or  inchoate  right  to  dower,  at  the 
time  of  making  the  will,  or  afterwards, 
may  be  made  out  by  evidence  dehors  the 
will.     Perrine  v.  Perrine  et  al.        133 

4.  In  an  action  of  trover  for  a  promis- 
sory note,  the  maker  of  the  note  is  a 
good  witness  for  the  defendant.    Wood- 
ruff'v.  Smith,  214 

5.  Parol  evidence  admitted  to  prove  a 
defendant  a  judge.  Qratz  v.  Wilson,  419 


II.  Matters  of  record  and  legal  pro- 
ceedings. 

1.  A  transcript  of  the  justice's  docket 
not  evidence  to  prove  the  delivery  of 
execution  to  constable.    Hunt  v.  Boy- 
Ian,  211 

2.  The  appraisers'  certificate  of  dam- 
ages done  to  the  plaintiff  may  be  given  in 
evidence  in  an  action  of  trespass,  after 
the  appraisers  themselves  have  been 
both  examined.     Crane  v.  Sayre,     110 

3.  Administration  cannot  be  proved 
by  parol.     Hay  v.  Bruere  et  al.       212 

4.  In  an  action  of  debt  upon  an 
award,  an  award  made  by  arbitrators, 
though  liable  to  legal  objections,  is  ad- 
missible in  evidence :  its  operation  must 
be  determined  in  another  mode.    Rich- 
ards v.  Drinker  et  al.  307 

5.  Upon  a  plea  of  no  award  the  de- 
fendant is  not  permitted  to  introduce 
evidence   to    prove    the   illegality   of 
the  award.  ib. 


6.  Under  a  plea  of  no  aware?  evidence 
of  performance  is  inadmissible.          ib. 


III.  Confessions  and  declarationt. 

1.  In  an  action  on  the  case  against  a 
constable  for  not  returning  a  writ  of 
attachment,   the    absconding    debtor's 
acknowledgment  of  the  sum  he  owed 
the  plaintiff,  is  good  evidence  against 
the  constable.    Stout  v.  Hopping,   125 

2.  Evidence  of  the  wife's  confessions, 
made  subsequent  to  the  marriage,  of  a 
debt  due  by  her  previous  to  the  marri- 
age, are  inadmissible  to  charge  the  hus- 
band.    Ross  and  wife  v.  Winners,   366 

3.  In  an  action  for  the  breach  of 
promise  of  marriage,  the  declarations 
of  the  plaintiff,  that  she  had  promised 
to   marry   the  defendant,   made   long 
before  the  suit  brought,  are  good  evi- 
dence for  the   plaintiff   to  shew  the 
mutuality  of  the  contract.     Pepping  jr 
v.  Low,  384 


IV.  Competency  of  witnesses. 

Though  referees  are  not  held  to  the 
extreme  strictness  of  the  rules  of 
evidence,  the  admission  of  the  testi- 
mony of  one  of  the  parties  will  vitiate 
the  award.  Fennimore  v.  Childs,  386 


V.  Against  and  between  partners  before 
arbitrators,  &c.  upon  plea  of  pay- 
ment, &c. 

1.  One  of  the  two  obligors  in  a  bond 
may   give  in   evidence,   in   an   action 
against    the    other,   receipts    endorsed 
upon  the  bond,  but  they  will  not  charge 
the    defendant    without    other    proof. 
Jessup  v.  Cook,  434 

2.  An  account  proved  to  be  in  the 
hand-writing  of  one  partner,  is  evidence 
to  go  to  the  jury  in  an  action  between 
the  partners,  though  it  is  not  signed,  ib. 

3.  Evidence  taken  before  arbitrators 
not  admissible  in  a  court  on  a  trial  of 
the  Fame  cause,  though  the  witness  be 
dead.  ib. 

4.  Where  the  condition  of  a  bond 
is,  to  pay  a  certain  sum  of  money  in 
articles  of  merchandise,  on  a  certain 
day,  under  a  plea  of  payment  at  the 
day,  a  tender  and  refusal  cannot  be 


VOL.  I. 


2a 


INDEX. 


proved :  nor  will  the  defendant  be  per- 
mitted to  avail  himself  in  mitigation 
of  damages,  of  the  circumstance,  that 
the  current  price  of  the  article  agreed 
to  be  paid,  was,  at  the  time  when  the 
payment  was  to  have  been  made,  lower 
than  the  price  fixed  in  the  bond. 
Grieve  ana  Moffai  v.  Annin  and 
Henry,  461 

EXCEPTIONS. 
See  BILL  or  EXCEPTIONS. 

EXECUTION. 

1.  Where  the  justice  of  the  peace 
issues  an  execution  or  tax  warrant  for 
fines  imposed  by  a  military  court  upon 
persons  neglecting  militia  duty,  without 
having  any  list  of  delinquents  returned 
to  him  by  the  officer  whose  duty  it  was 
to  make  such  return,  the  execution  or 
tax  warrant  will  be  set  aside.     The 
State  v.  Kirby,  143 

2.  Upon  the  reversal  or  affirmance 
of  a  judgment  of  the  Supreme  Court  by 
the  Court  of  Errors,  and  a  remittitur 
of  the  record,  no  application  to  the 
court  for  leave  to  issue  execution  is 
necessary.     Heading  v.  Den  ex  dem. 
Heading,  186 

3.  The  court  will  not  undertake  to 
determine    the    question    of    priority 
between  two  executions,  on  the  appli- 
cation of  one  of  the  parties  interested. 
M' Donald  v.  Lawry,  414 

See  CONSTABLE,  2. 
EVIDENCE,  II.,  2. 

EXECUTORS  AND  ADMINISTRA- 
TORS. 

1.  The  power  of  administrators  is 
joint  only :  they  must  sue  and  be  sued 
jointly,  appear  and  plead  jointly  ;  they 
cannot  plead   severally,   as   executors 
may,  and  judgment  against  them  must 
be  in  their  joint  capacity.    Dickerton  v. 
Jlobinson  et  al.  195 

2.  A  cognovit  actionem,  by  an  execu- 
tor, is  an  admission  of  assets.     Den  ex 
dem.  Lockyer  v.  De  Hart,  450 

See  LIMITATIONS,  1. 


EXONERETUR. 

1.  Where  a  person  contracts  a  debt 
in  Pennsylvania,  for  which  he  is  sued 
in  this  state,  and,  during  the  pendency 
of  the  suit  here,  goes  to  Pennsylvania, 
and  being  arrested  by  other  creditors 
there,  takes  the  benefit  of  the  insolvent 
laws  of  that  state,  this  court  will  order 
exoneretur  to  be  entered  on  the 
bailpiece  in  the  suit  pending  here. 
Rowland  v.  Stevenson,  149 


FEES  OF  SHERIFF. 
See  SHERIFF. 

FINE. 

For  neglect  of  militia  duty — irregu- 
larity in  collecting. 

See  TAX  WARRANT,  1. 

FISHERY,  SEVERAL. 
See  GRANT,  II.,  1. 


FORCIBLE    ENTRY   AND 
DETAINER. 

1.  To  an  inquisition  of  forcible  entry 
and  detainer,  the  defendant  protesting 
the  insufficiency  of  the   charge,  and 
that  the  prosecutor  had  not  been  at 
any   time  within   three   years    before 
inquisition  found  in  possession  of  the 
premises,  pleaded — I.  As  to  the  force 
and  arms,  not  guilty.     2.  That  those 
under    whom    he    held    had    been    in 
possession  for  eight  years  next  before, 
Ac.  without  this,  that  the  defendant,  on 
the  day  and  year  alleged,  entered,  dis- 
seized,  Ac.     Held  this   plea    bad    on 
demurrer.    State  v.  Covenhoven,       396 

2.  Defendant  may  avail  himself,  in 
his  defence,  of  his  three  years'  posses- 
sion, and  may  put  in  issue  the  forcible 
entry,  &c.  but  one  should  be  pleaded 
under  a.  protestando.  otherwise  the  plea 
will  be  bad  for  duplicity.  ib. 


INDEX. 


zxi 


3.  Possession  is  not  a  plea  in  bar  to 
the  inquisition,  but  it  is  a  good  plea  to 
prevent  restitution.  ib. 

4.  The  right  to  restitution  is  a  civil 
right,  and  when  a  plea  is  pleaded  in 
bar  of  restitution,  the  prosecutor  may 
reply  in  his  own  name.  ib. 

5.  Plea,  that  those  under  whom  de- 
fendant holds  have  been  in  possession 
three  years  next  before,  Ac.  bad.       ib. 

6.  Plea  of  possession  for  eight  years 
before,  &c.  bad :    it  puts  in   issue  an 
immaterial  fact.  ib. 

7.  Whether  a  defective  plea  to  an 
inquisition  of  forcible  entry  and  de- 
tainer may  be  amended.     Query,      ib. 


a 

GRANT. 

T.  Grant  of  Charles  II.  to  the  Duke 

of  York. 

II.  Grant  from  Duke  of  York  to  pro- 
prietors. 


I.  Grant  of  Charles  II.  to  the  Duke  of 
York. 

1.  By  the  grant  of  Charles  II.  to  the 
Duke  of  York,  those  royalties  of  which 
the  rivers,  forts,  bays,  and  coasts  were 
a  part,  passed  to  the  Duke  of  York,  as 
the  governor  of  the  province  exercising 
the  royal   authority,  and   not  as  the 
proprietor  of  the  soil,  and  for  his  own 
use.    Arnold  v.  Mundy,  1 

2.  Upon   the   revolution,    all   those 
royal  rights  vested  in  the  people  of  New 
Jersey,  as  the  sovereign  of  the  country, 
and  are  now  in  their  hands.  ib. 


1 1.  Grant  from  Duke  of  York  to  pro- 
prietors. 

The  proprietors  of  New  Jersey,  did 
not  under  the  grant  from  the  Duke  of 
York,  take  such  a  property  in  the  soil 
of  the  navigable  rivers  in  this  state, 
that  they  could  grant  several  fisheries 
therein.  Arnold  v.  Mundy ,  1 


HUSBAND  AND  WIFE. 

Evidence  of  the  wife's  confessions, 
made  subsequent  to  the  marriage,  of  a 
debt  due  by  her  previous  to  the  mar- 
riage, are  inadmissible  to  charge  the 
husband.  Ross  and  vrifev.  Winner$,36Q 


INDIANS. 
See  SLAVES,  1. 

INDICTMENT. 
See  ATTACH MENT,  1. 

INJUNCTION. 

1.  Under   the   act   of  the  25th  of 
February,   1821,  entitled    "A   further 
supplement  to  the  act  entitled  an  act 
to  preserve  and  support  the  jurisdiction 
of  the  state,"  a  citizen  of  this  state  who 
has  been  restrained,  by  an  injunction  out 
of  the  Court  of  Chancery  of  New  York, 
from  navigating,  with  nis  steam-boat, 
the  waters  between  the  ancient  shores 
of  the  states  of  New  Jersey  and  New 
York,  may  recover  damages,  with  triple 
costa,  against  the  persons  so  restraining 
him.     Gibbons  v.  Livingston,  23b 

2.  Although  the  enjoining  and  re- 
straining was  by  virtue  of  an  injunc- 
tion sued  out  and  served  before  the 
passing  of  the  act,  and  although  the 
defendant  did  no  act,  or  thing,  after 
the  passing  of  this  act,  to  enforce  the 
injunction,  yet,  his  suffering  it  to  re- 
main in  force  after  the  passing  of  the 
act,  and  not  dissolving  it,  was  such  a 
restraining  and  enjoining  as  to  bring 
him  within  the  words  of  the  act.      ib. 

3.  The  injunction  issued  by  virtue,  or 
under  colour  of  the  laws  of  New  York, 
because  it  is  those  laws  which  create 
the  right  upon  which  the  power  of  issu- 
ing the  injunction  was  exercised.      t4. 

INDENTURE,  NATURE  OF. 

See  OVERSEERS  OF  HOPEWELL  v.  AM- 
WELL,  175. 


XX11 


INDEX. 


INVENTORY. 
See  CONSTABLE,  2. 

INSOLVENT  LAWS. 

Effect  of  discharge  under  insolvent 
laws  of  Pennsylvania. 

See  EXOHEEETUE,  1. 

1.  One  -who  has  been  arrested  on  a 
co.  res.  and  permitted  by  sheriff  to  go 
at  large,  is  not  "in   confinement  for 
debt"  within  the  meaning  of  the  in- 
solvent law.     Timothy  Brush,         404 

2.  It  is  no  answer  to  a  plea  of  the 
statute  of  limitations,  that  the  defend- 
ant has  been  discharged  under  an  in- 
solvent law.    Scott  v.  Stackhouse,    431 

INTENDMENT. 

1.  All  intendments  to  be  taken  in 
firvour,  and  not  against  a  record.  West- 
cott  v.  Garrison  and  Danzenbaker,  132 

INTEREST. 

The  mode  of  calculating  interest, 
where  there  has  been  partial  payments, 
ia,  to  calculate  to  the  time  of  payment, 
then  the  sum  paid  deducted  from  the 
amount,  and  interest  calculated  on  the 
residue  to  the  next  payment.  Meredith 
V.  Bankt,  408 

INTERROGATORIES. 

The  answer  to  interrogatories,  in  case 
of  an  attachment  for  a  contempt,  must 
be  delivered  ore  tcnnt.  The  State  v. 
Fitter,  305 

IRREGULARITY  IN  COSTS. 
See  JUDGMENT,  I.,  3. 

J 

JEOFAILS. 

See  AMENDMENT. 


JUDGE  OF  THE  SUPREME  COURT 
OF  UNITED  STATES. 

See  BAIL,  4. 


JUDGMENT. 
I.  Reversal  and  vacation  of. 

1.  Judgment  not  reversed  because 
the  verdict  is  entered  in  figures,  if  the 
judgment  thereon  is  entered  in  words 
at  length.     Stout  v.  Hopping,          125 

2.  Where  a  judgment  has  been  ren- 
dered against  a  constable,  in  an  action 
on  the  case,  for  not  returning  a  writ  of 
attachment,  the  judgment  will  not  be 
reversed  because  the  justice  overruled 
the  testimony  offered  by  the  constable, 
of  what  became  of  the  property  at- 
tached, to. 

3.  Judgment  not  reversed  for  irregu- 
larity in  entering  costs.  ib. 

4.  To  reverse  a  judgment,  the  error 
must  be  manifest.      Westcott  v.  Garri- 
son and  Danzenbaker,  132 

5.  This  court  will  not  order  a  judg- 
ment to  be  vacated  because  the  plain- 
tiff thinks  he  has  discovered  a  partner 
of  defendant,  to  enable  the  plaintiff  to 
bring  an  action  against  the  defendant 
and  such  supposed  partner.     Black  v. 
Budd,  152 

6.  Where  there  has  been  a  judgment 
in  ejectment  by  default,  on  which  a  hab. 
J'ac.  post,  has  issued,  the  court  will,  on 
affidavit  of  a  real   defence,  open   the 
judgment  on   payment  of   costs,   but 
will  not  set  aside  the  execution,  or  or- 
der restitution.    Den  v.  Ferin,        431 


JUDGMENTS  CONFESSED. 

1.  The  authority  of  a  person  confess- 
ing a  judgment  for  another,  must  ap- 
pear on  record.  Campbell?.  Cooper,  142 

2.  It  is  not  necessary  that  the  bond 
and  warrant  of  attorney  under  (the  act 
of  29th  January,  1817,  to  prevent  fraud- 
ulent confession  of  judgments)  should 
be  given  at  one  and  the  same  time,  and 
to  one  and  the  same  person.     It  will 


INDEX. 


XXlll 


not  be  error,  though  they  were  given 
to  different  persons  and  at  different 
times.  Burroughs  et  al.  v.  Condict,  300 

3.  It  is  not  necessary  that  it  should 
appear  upon  the  record,  that  the  bond 
and  warrant  of  attorney  were  produced 
before  the  judge  at  the  time  of  entering 
the  judgment.  ib. 

4.  It  is  not  necessary  that  the  war- 
rant of  attorney  should  be  directed  to 
any  attorney  in  particular  ;  it  is  suffi- 
cient if  it  is  directed  only  generally  to 
any  citizen  of  New  Jersey.  ib. 

See  PRACTICE,  III. 
AFFIDAVIT,  3. 


JURISDICTION  OF  JUSTICE  OF 
THE  PEACE. 

See  COURT  FOE  SMALL  CAUSES. 


JURISDICTION  OF  THE  STATE. 
See  INJUNCTION,  1. 


JURY. 


I.  Petit. 

II.  Grand. 

III.  Struck. 

I.  Petit. 

If  after  a  jury  has  retired,  they  re- 
quire further  explanation  i'rom  the 
court,  and  the  court,  after  calling  upon 
the  counsel  of  the  defendant,  to  go  with 
him,  who  refuses,  and  after  seeking  for 
the  defendant,  who  cannot  be  found, 
goes  into  the  jury  room  and  gives  them 
the  explanation  they  require,  this  is  not 
error.  Cook  v.  Green,  109 


II.  Grand 
See  ABATEMENT,  1. 

III.  Struck. 

Struck  jury,  costs  of,  in  putting  off 
trial. 

See  COSTS,  3. 


JUSTICE  OF  PEACE. 

1.  Bound  to  declare  the  law  to  the 
jury,  when  called  upon  so  to  do.   Todd 
v.  Collins,  127 

2.  The  justice  cannot  proceed  to  try 
a  cause  in  the  absence  of  the  plaintiff; 
if  he  does,  and  renders  judgment  against 
him,  it  will  be  set  aside.     Cavalier  v. 
Doughty,  227 


JURISDICTION  OF  JUSTICE. 

See  COURT  FOR  THE  TEIAL  OF  SMALL 

CAUSES. 
TRANSCRIPT,  3. 
ERROR,  2. 
VERDICT,  No.  1. 


L 

LANDLORD. 

Landlord  not  liable  under  the  statute, 
(Rev.  Laws  146,  sec.  1)  for  the  act  of 
his  tenant,  who,  by  setting  tire  to  his 
own  woods,  consumes  woods  of  hu 
neighbours.  Todd  v.  Collins,  127 

LEGACY. 

1.  A  legacy  given  to  a  wife  in  lieu 
of  dower,  the  wife  having  no  title  or 
inchoate  right  to  dower  at  the  time  of 
making   the  will,  or  afterwards,  will 
abate  m  proportion  to  other  legacies. 
Perrine  v.  Perrine  et  al.  133 

2.  Before  a  legatee  can  sue  an  execn- 
tor  for  a  legacy,  a  refunding  bond  must 
be  61ed,  even  though  the  accounts  of 
the  executor  are  settled,  and  a  suffi- 
ciency of  assets  appear.     Cowell  v.  Ox- 
ford, 432 

LEX  LOCI. 

Can  a  citizen  of  the  state  of  New 
York,  acting  within  that  state,  and 
under  its  judicial  authority,  be  called 
in  question  for  such  act  in  another 
state?  As  a  general  rule,  he  cannot 
But  under  the  act  of  this  state  of  the 
25th  February,  1821.  it  appears  k« 
may.  Gibbons  v.  Livingston,  236 


XX  K7 


INDEX. 


LIMITATION  OF  ACTIONS. 

1.  Where  an  executor  pays  money  to 
a  legatee,  and  six  years  after  the  pay- 
ment, upon  a  settlement  in  the  Orphans' 
Court,  discovers  that  he  has  paid  the 
legatee  more  than  he  was  entitled  to, 
brings  an  action  to  recover  the  money 
overpaid,  the  action  is  barred  by  the 
statute  of  limitations.     Ely  v.  Norton, 
Executor  of  Lee,  187 

2.  When  there  is  an  open  running 
account  for  some  years,  although  some 
of  the  items  may  be  of  more  than  six 
years'  standing,  the  claim  is  not  barred 
by  the  statute  of  limitations.     Execu- 
tors of  Burnet  v.   Adminittraton  of 
Bryan,  377 

3.  Where  A.  has  a  demand  against 
B.  which  is  not  barred  by  the  statute, 
and  B.  dies  intestate,  the  statute  will 
not  run  until  letters  of  administration 
are  taken  out :  though  there  may  be  an 
executor  de  ton  tort.  ib. 

4.  When  statute  of  limitations  plead- 
ed, leave  given  to  add  a  count  stating 
a  promise  by  administrator.    Saltar  v. 
Saltar,  405 

5.  It  is  no  answer  to  a  plea  of  the 
statute  of  limitations,  that  the  defend- 
ant has  been  discharged  under  the  in- 
solvent law.     Scott  v.  Stackhouse,  431 


LOCAL  ACTION. 
See  AOTIOH,  1. 

M 

MANDAMUS. 

1.  Though  a  mandamut  will  lie  to  an 
inferior  court,  to  command  the  judges 
thereof  to  proceed  to  judgment,  yet  it 
will  not  lie  to  command  them  to  proceed 
to  any  particular  judgment,  and  much 
leas,  to  command  them  to  pet  aside  a 
verdict  and  grant  a  new  trial,  or  even 
to  grant  a  rule  to  shew  cause  for  that 
purpose.      Squier   Pienon    et    al.    v. 
W,  157 

2.  Supreme  Court  will  not  grant  a 
mandamut    to    compel    the   Common 


Pleas  to  enter  judgment  on  a  report  of 
auditors  while  a  rule  is  pending  in  that 
court  to  shew  cause  why  the  report 
should  not  be  set  aside.  Berry  v.  Cat- 
let,  179 

MARRIAGE. 
See  EVIDENCE,  III ,  3. 

MALICIOUS  PROSECUTION. 

What  the  state  of  demand  in  an  ac- 
tion for,  must  set  out. 

See  STATE  OF  DEMAITD.  3. 

MEADOW  BANK. 

Under  the  18th  section  of  the  statute 
of  29th  November,  1788,  (Pat.  84)  rela- 
tive to  bank  meadows,  if  the  bank  get 
out  of  repair,  so  that  immediate  repairs 
are  necessary,  and  the  person  to  whom 
that  part  of  the  bank  has  been  assigned 
neglects  to  repair  it,  if  any  of  the  own- 
ers enter  and  make  repairs  they  may 
maintain  an  action  against  the  person 
whose  duty  it  was  to  repair.  Westcolt 
v.  Garrison  and  Danzenbaker,  132 


MILITIA  DUTY,  FINES  FOR 
NEGLECT  OF. 

See  TAX  WABBAST,  1. 


MORTGAGE. 

1.  The  interest  of  the  mortgagee  is 
personal  estate,  and  passes  under  a  con- 
veyance of  personal  property  :  but  the 
assignee  claiming  under  the  transfer,  by 
the  state,  of  the  personal  estate  of  the 
mortgagee,  which  had  been  confiscated 
for  treason,  may  bring  ejectment  on  this 
mortgage.     Den  ex  dem.  Jouet  v.  Spin- 
ning, 466 

2.  Query.    In  whose  name  must  the 
action  be  brought?  ib. 

3.  The  mortgagee  may  be  admitted 
to  defend  in  an  action  of  ejectment, 
unless  the  lessor  of  the  plaintiff  will 
discharge  the  mortgage.     Den  ex  dem. 
Nathan  v.  Fen,  478 


INDEX. 


XXV 


N 
NEW  TRIAL. 

I.  By  what  courts  granted. 
II.  On  what  terms,  and  when. 

I.  By  what  courts  granted. 

1.  Court  of  Quarter  Sessions  may 
grant  a  new   trial   upon  the  merits. 
The  State  v.  Parker,  148 

2.  Courts  of  Common  Pleas  have  a 
right  to  set  aside  verdicts,  and  to  grant 
a  new  trial,  and  they  have  this  right  as 
well  in  cases  of  appeals  under  statute 
as  in  other  cases.     Squier,  Pierson  et  al. 
v.  Gale,  157 

II.   When  and  on  what  terms  granted. 

1.  Where  every  reasonable  diligence 
has  been  employed  by  a  defendant  to 
prepare  for  trial,  but  he  has  been  unable 
to  attend  himself  on  account  of  sick- 
ness,  and   an   important   witness,   for 
him,  had  left  the  country  before  the 
trial,  and  other  circumstances  are  laid 
before  the  court,  exonerating  the  party 
from  laches,  and  shewing  a  real  and 
equitable  defence,  and  the  merits  of  the 
case  have  not  been   investigated,  the 
court  will  grant  a  new  trial.    Sherrard 
v.  Olden  and  Gardner,  344 

2.  On  an  application  for  a  new  trial, 
the  affidavits  of  the  parties  themselves 
are  admissible  to  shew  the  grounds  on 
which  it  is  made.  ib. 

3.  In  order  to  entitle  a  party  to  a 
new  trial,  on  the  ground  of  newly  dis- 
covered evidence,  such  evidence  must 
be  important,  and  shew  that  injustice 
has  been  done.     Jessup  v.  Cook,       434 

NOTICE. 

Service  of  notice  of  amercement  on 
the  sheriff,  must  be  a  personal  service. 
Anon.  159 


O 

OBLIGORS. 
See  EVIDENCE,  V.,  1. 


ORDER. 

I.  For  distress  warrant. 
II.   To  produce  books. 


I.  Order  for  distress  warrant. 

An  order  of  two  justices  for  issuing  a 
distress  warrant  against  overseers  of  the 
poor,  made  without  any  notice  of  the 
application  for  such  distress  warrant 
given  to  the  overseers,  against  whom  it 
is  to  be  issued,  is  irregular  and  will  be 
set  aside.  Overseers  of  Tewksbury  v. 
Overseen  of  Washington,  177 


II.  Order  to  produce  books. 

In  an  action  of  assumpsit  for  goods 
sold,  this  court  will  not  make  an  order 
on  the  plaintiff,  to  produce  their  books 
and  papers  relative  to  the  issue,  pre- 
vious to  the  trial,  to  be  left  with  the 
defendant's  attorney  for  his  inspection. 
Knox  and  Nixon  v.  Executors  of  Rol- 
ston,  183 


OYEK 
See  PRACTICE,  VII.,  1. 

OYSTERS,  PLANTED. 

A  person  who  plants  oysters  on  the 
bed  of  a  navigable  river,  below  low 
water  mark,  has  not  such  a  property 
therein  as  to  enable  him  to  maintain 
trespass  against  a  person  taking  them 
away,  although  the  oyster-bed  should 
be  adjacent  to  his  own  shore.  Arnold 
v.  Mundy,  1 


P 

PARTNER. 

1.  A  culpable  neglect  in  one  partner, 
in  pursuing  the  claims  of  the  concern, 
may  render  him  liable  to  the  other 
partner,  for  the  amount  which  has  been 
lost  by  his  neglect:  but  he  is  only 
obligea  to  take  the  same  care  of  the 
partnership  business  as  of  his  own. 
Jestup  v.  Cookt  434 


XXVI 


INDEX. 


2.  An  account  proved  to  be  in  the 
hand  writing  of  one  partner,  is  suffi- 
cient evidence  to  go  to  the  jury  in  an 
action  between  the  partners,  though  it 
is  not  signed.  if>. 

PAYMENT. 

1.  A  payment  subsequent  to  the 
filing  of  the  declaration,  will  not  con- 
stitute a  ground  of  action.  Jeaaup  v. 
Cook,  434 

2  When  the  condition  of  a  bond  is 
to  pay  a  certain  sum  of  money  in  arti- 
cles of  merchandise,  on  a  certain  day, 
a  tender  and  refusal  cannot  be  proved ; 
tinder  a  plea  of  payment  at  the  day, 
nor  will  the  defendant  be  permitted  to 
avail  himself,  in  mitigation  of  damages, 
of  the  circumstance,  that  the  current 
price  of  the  article  agreed  to  be  paid, 
was,  at  the  time,  when  the  agreement 
was  to  have  been  made,  lower  than  the 
price  fixed  in  the  bond.  Orieve  and 
Moffat  v.  Annin  and  Henry,  461 


PERSONAL  PROPERTY. 
Bee  MORTGAGE,  1. 


^LEADING. 

t    Declaration. 
il.  flea. 


I.  Declaration. 

1.  A  contract*  with  B.  in  writing,  to 
convey  certain   land  to  him  the  next 
"Wednesday,  when  B.  is  to  pay  A.  $295, 
and  give  a  note  for  $25  more,  payable 
in  four  months.     In  an  action  by  B. 
against  A.  for  not  making  a  deed  for 
the  land,  the  state  of   demand   must 
aver,  that  the  $295  were  tendered  by 
B.     Harvey  v.  Trenchant,  126 

2.  A  count  for  money  paid  to  and  for 
the  use  of  defendant,  ana  at  his  request 
to   A     B    is   good   in  justices'   court 
Vanderveer  v.  M'MaeJnn,  213 

3.  When  an  action  is  brought  upon 
'  a  public  statute,  it  is  not  necessary  to 

aver  in  the  declaration,  that  the  cause 
of  action  accrued  after  the  passing  of 


the  statute.  Thus,  npon  the  act  of  25th 
February,  1*20,  it  is  sufficient  if  the 
enjoining  is  laid  to  be  alter  the  act 
went  into  operation,  without  specially 
averring  that  it  was  so.  G-ibbons  v. 
Ogden,  285 

4.  In  an  action  upon  this  statute,  it 
is  sufficient  to  aver,  that  the  restraint 
complained  of  "was  on  the  waters  of 
the   bay  of  New   York,"   which   said 
waters  lie  between  the  ancient  shores 
of  New  Jersey  and  New  York,  without 
setting  forth  any  act  done  in  either  of 
the  said  states  in  particular.  ib. 

5.  In  an   action  upon   the  statute, 
25th  February,   1820,  section   3d,  for 
restraining  plaintiff  by  virtue,  or  under 
colour  of  any  laws  of  New  York,  it  is 
not  necessary  to  set  out   those   laws 
specifically  because  they  are  mere  mat- 
ters of  inducement.  ib. 

6.  Whenever  the   plaintiff  declares 
upon  an   award,  which   is   absolutely 
void,  he  cannot  have  judgment  upon 
it,   though   the  defendant    may   have 
pleaded    erroneously.       Richards    v. 
Drinker  et  al.  307 

II.  Flea. 

1.  It  is  a  good  plea  in  abatement  to 
an  indictment  for  a  rape,  that  one  of 
the  grand  jurors  by  whom  the  bill  waa 
found,  was  not  a  freeholder,  as  he  is 
directed  to  be  by  the  act  of  assembly. 
State  v.  Rockajellow,  332 

Pleas  in  forcible  entry  and  detainer. 

See  FORCIBLE  ENTRY  AND  DETAINER, 
2,  3,  4,  5,  6. 

2.  A  covenant,  that  a  bond  shall  not 
be  prosecuted  until  the  happening  of  a 
certain  event,  cannot  be  pleaded  in  bar 
to  an  action  on  the  bond  brought  before 
the  time,  but  a  special  action  may  be 
brought  and  damages  recovered  for  the 
breach  of  the  covenant.    Ho/man  v. 
Brown,  429 

See  PATMENT,  2. 

PROMISSORY  NOTE. 
See  EVIDENCE,  I.,  4. 


INDEX. 


XXVll 


POSSESSION. 

1.  Constable  can  only  acquire  such 
possession  of  goods,  as  will  enable  him 
to  maintain  trover,  by  taking  an  in- 
ventory of  them.     Wintermute  v.  Han- 
kinson,  140 

2.  A    conveyance    of    chattels    un- 
accompanied with  possession  is  void. 
Chumar  v.  Wood,  155 

See  EJECTMENT,  1. 

FOECIBLE  ENTET  AND  DETAINER, 
2,  3,  5,  6. 

POSTEA. 
See  PEACTICE,  VI.,  1. 

PRESUMPTION. 
See  ALTERATION,  1,  2. 

PRIVILEGE   OF   JUDGE  OF 
SUPREME  COURT,  U.  S. 

See  BAIL,  4. 

PRACTICE. 

I.  Process. 

II.  Bail  and  bail  piece. 

III.  Affidavits. 

IV.  Changing  venue. 

V.  Assessment  of  damages. 
VI.  Motions,  arguments,  and  notices 
of  motion,  service  of  rules,  &c. 
VII.  Oyer. 

I.  Process. 

Writ  of  dower  cannot  be  amended 
by  inserting  a  place  of  appearance, 
which  had  been  omitted.  Anon.  166 

II.  Bail  and  bail  piece. 
See  BAIL  AND  BAIL  PIECE,  ante. 

III.  Affidavits. 

1.  Affidavits  to  hold  to  bail  for  money 
due  on  articles  of  agreement,  must  state 
the  breach  of  the  articles  of  agreement, 
or  the  defendant  will,  be  discharged  on 
common  bail.  Administrators  of  Sneed 
v.  Meguire,  152 


2.  The  affidavit  required  under  the 
fifth  section  of  the  act  directing  the 
mode  of  entering  judgments  on  lands 
with  warrants  of  attorney,  must  state 
the  consideration  of  the  bond,  and  it  ia 
not  sufficient  to  state  the  consideration 
of  the  assignment  of  the  bond  only. 
Woodward  ads.  Cook,  IbO 

3.  Under  the  act  of  29th  January, 
1817,  to  prevent  the  fraudulent  confes- 
sion of  judgments,  "the  affidavit  to  be 
produced  to  the  judge  before  whom  the 
judgment  is  confessed,  need  not  state 
the   true  consideration  of  the  bond." 
It  is  sufficient  if  it  state,  that  the  true 
cause  of  action  is  the  bond,  &c.     Bur- 
roughs et  al.  v.  Condit,  300 

4.  Query.    Whether  the  affidavits  of 
jurymen  are  admitted  to  shew  the  prin- 
ciples upon  which  they  founded  their 
verdict?    Jessup  v.  Cook,  434 

IV.  Changing  venue. 

A  motion  to  change  the  venue  on  the 
common  affidavit  must  be  before  plea 
filed ;  if  a  special  ground  is  laid,  the 
venue  may  be  changed  after  plea 
pleaded.  Wildes  v.  Mairs,  320 

V.  Assessment  of  damages. 

After  an  interlocutory  judgment  by 
default,  in  an  action  for  assault  and 
battery,  the  court  have  the  power,  in 
case  of  difficulty,  or  when  special  cir- 
cumstances are  laid  before  them,  to 
direct  a  special  jury  to  be  summoned, 
in  order  to  assess  the  damages,  and  the 
inquiry  to  be  held  before  a  judge  at 
Nisi  Prius,  but  the  mere  circumstance 
of  the  battery  having  been  very  severe, 
is  not  sufficient  to  take  the  case  out 
of  the  ordinary  course.  White  v. 
Hunt,  330 

VI.  Motions,  arguments,  and  notices  of 
motions,  service  of  rules,  &c. 

1.  When  a  plaintiff  moves  for  judg- 
ment upon  a  postea,  which  states,  that 
the  defendant  made  default  at  the  cir- 
cuit, and  this  motion  is  opposed  upon 
the  ground,  that  notice  of  trial  was  not 
served,  proof  of  due  notice  may  be 
made,  either  at  the  circuit  or  at  bar. 
Eoqua  v.  Ware,  151 


sxvni 


INDEX. 


2.  Service  of  notice  of  amercement 
on  the  sheriff  must  be  a  personal  ser- 
vice.    Anon.  159 

3.  Rules  to  plead  must  be  served  on 
defendant's  attorney,  though  he  was  in 

court  when  the  rule  was  taken.    

v.  Dill,  168 

4.  In  an  action  of  assumpsit  for  goods 
sold,  this  court  will  not  make  an  order 
on  the  plaintiffs  to  produce  their  books 
and  papers  relative  to  the  issue,  pre- 
vious to  the  trial,  to  be  left  with  the 
defendant's  attorney  for  his  inspection. 
Knox  and  Nixon  v.  Executors  of  Rol- 
ston,  183 

5.  Upon  the  reversal  or  affirmance 
of  a  judgment  of  this  court  by  the 
Court  of  Errors,   and  a  remittitur  of 
the  record,  no  application  to  the  court 
for  leave  to  issue  execution  is  necessary. 
Reading  v.  Den  ex  dem.  Reading,    186 

6.  When  statute  of  limitations  plead- 
ed, leave  given  to  add  a  count  stating 
a  promise  by  administrator.    Saltar  v. 
Saltar,  405 

7.  The  court  will  not  undertake  to 
determine  the  question  of  priority  be- 
tween two  executions,  on  the  applica- 
tion of  one  of  the  parties  interested. 
M' Donald  v.  Lawry,  414 

8.  The  party  has  until  the  last  day 
of  the  term  succeeding  the  publication 
of  an  award,  to  except  to  it :  but  the 
argument  ought  to  be  brought  on  at 
the  second  term.  Den  ex  dem.  Pancoatt 
V.  Curtis,  415 

See  AWARD,  4. 
JUDGMENT,  6. 

VII.  Oyer. 

Where  oyer  is  demanded,  and  the 
manner  in  which  it  is  given  is  unsatis- 
factory, the  objection  must  be  made  at 
the  trial,  and  not  by  motion,  to  pro 
duce  the  papers  that  are  wanted.  Brooks 
\.  Executors  of  Brooks,  404 

PROCEDENDO. 

A  statute  was  passed  on  the  9th  of 
March,  1797,  which  declared,  that  no 
action  should  be  removed  from  any  of 


the  courts  of  Common  Pleas  to  the  Su- 
preme Court,  by  habeas  corpus,  after 
Clea  pleaded,  a  plea  in  bar  excepted ; 
eld  that  where  a  habeas  corpus  was 
presented  on  the  10th  of  March,  after 
the  general  issue  pleaded,  and  the  cause 
removed,   a  procedendo  should   issue. 
Austin,  Executor  of  Nelson,   v.  Nel- 
son, 381 

PROPRIETORS  OF  NEW  JERSEY. 
See  GEANT,  II.,  1. 

PUBLICATION  OF  AWARD. 
See  AWARD,  8. 

B 
RECORD. 

See  lUTEHDMENT,  1. 

RECEIPTS. 
See  EVIDENCE,  V.,  1. 

REFEREES. 

1.  Though  referees  are  not  held  ti 
the  extreme  strictness  of  the  rules  of 
evidence,  the  admission  of  the  testimony 
of  one  of  the  parties  will  vitiate  tha 
award.     Fennimore  v.  Childs,          386 

2.  Under  the  act  of  December,  1794, 
it  ought  to  appear  upon  the  face  of  the 
proceedings,  that  the  referees  were  duly 
sworn.     Ford  v.  Potts,  388 

3.  The  act  does  not  make  void  every 
award  of  arbitrators  who  were  not  duly 
sworn :  it  may  be  waived  by  the  par- 
ties, ib. 

4.  It  does  not  extend  to  cases  which 
had    been  referred    previously  to  ite 
passing.  ib. 

5.  Where  referees  have  been  appoint- 
ed under  the  directions  of  an  act  of  the 
legislature,  the  court  will  not  examine 
into  the  legality  of  this  appointment 
until  the  referees  have  proceeded  to  act. 
Harrison  et  al.  v.  Sloan.  410 

REFUNDING  BOND. 
See  LEGACY,  2. 


INDEX. 


XXIX 


KEMITTITUR. 
See  EXECUTION,  2. 

REPORT  OF  AUDITORS. 
See  COUET  OF  COMMON  PLEAS,  2,  3. 

RESTITUTION. 

See   FORCIBLE     ENTRY    AND    DE- 
TAINER, 4. 

RETURN  OF  ATTACHMENT. 
See  CONSTABLE,  2. 

RETURN  TO  CERTIORARI. 

1.  Where  the  sessions  have  made  a 
return  to  a  certiorari,  which  was  ad- 
judged incomplete,  and  another  return 
made,  the  court  will  not  refer  to  the 
first,  in  order  to  settle  any  ambiguity 
in  the  second ;  but  a  rule  may  be  taken 
on  the  sessions  to  amend.  State  v. 
Hunt,  303 

RETURN  OF  SUMMONS. 

Bee   COURT    FOR  TRIAL  OF  SMALL 
CAUSES,  3. 

ROYALTIES. 
See  GRANT,  1,  2. 

RIVERS. 

1.  Navigable  rivers,  where  the  tide 
ebbs  and  flows,  the  ports,  bays,  coasts 
of  the  sea,  including  both  the  waters 
and  the  land  under  the  waters,  for  the 
purposes  of  passing  and  repassing,  nav- 
igation, fishing,  fowling,  sustenance,  and 
all  other  uses  of  the  water  and  its  pro- 
ducts, are  common  to  the  people  of  New 
Jersey.     Arnold  v.  Mundy,  1 

2.  A  grant  of  land  bounded  upon  a 
fresh  water  stream  or  river,  where  the 
river  neither  ebbs  nor  flows,  extends  ad 
filum  aquce ;  but  a  grant  bounded  upon 
a  navigable  river,  extends  to  the  edge 
of  the  water  only.  to. 

3.  A  person  who  plants  oysters  on 
the  bed  of  a  navigable  river  below  low 
water  mark,  has  not  such  a  property 
therein  as  to  enable  him  to  maintain 
trespass  against  a  person  taking  them 
away,  although  the  oyster  bed  should 
be  adjacent  to  his  own  shore.  ib. 


RULE. 
See  PRACTICE,  VI.,  3. 

S 

SALE'OF  CHATTELS. 
See  POSSESSION,  2. 

SESSIONS. 
See  COURT  OF  QUARTER  SESSIONS. 

SCIRE  FACIAS. 

A  scire  facias  is  anew  and  independ- 
ent action,  and  a  writ  of  error  remov- 
ing the  record  in  the  original  action, 
will  not  remove  the  proceedings  in  the 
scire  facias.  Greenway  v.  Dare,  305 

SCROLL. 

A  scroll  by  way  of  seal  not  goo<l. 
except  upon  instruments  for  the  pa) 
ment  of  money  only.  Overseers  of  Hop* 
well  v.  Overseers  of  Amwell,  17'J 

SECURITY  FOR  COSTS. 
See  COSTS,  5.  • 

SET-OFF. 

1.  A.  makes  an  assignment  to  B.  and 
C.  of  all  his  property,  to  be  sold  by 
them  for  the  payment  of  his  debts.  The 
creditors  of  A.  not  allowed  to  offset 
their  demands  against  A.  in  payment 
of   articles  purchased  at  the  vendua 
made  by  B.  and  C.  of  the  goods  of  A. 
Bateman  v.  Connor  and  Jaggers,     101 

2.  And  although  B.  invites  creditor* 
of  A.  to  purchase,  by  telling  them  thty 
may  offset  their  demands  against  A.  in 
payment,  yet,  if  after  this  invitation, 
articles  of  vendue  are  publicly  declared 
at  the  sale,  which  contains  no  such  stip- 
ulation in  favour  of  creditors,  such  off- 
set will  not  be  allowed.  ib 

3.  A  purchase  of  the  equity  of  re- 
demption, by  the  mortgagee,  is  not  an 
extinguishment  of  the  attendant  bond, 
and  therefore,  in  an  action  of  assumpsit 
by  the  mortgagor  against  the  mortgagee 


XXX 


INDEX. 


for  goods  sold,  the  mortgagee  may  offset 
his  bond,  notwithstanding  his  purchase 
of  the  equity  of  redemption.  Cattel  v. 
Warwick,  '  190 

4.  Unliquidated  damages  cannot  be 
set-off,  although  they  might  be  recov- 
ered in  indebitatut  assumpsit.  Edwards 
v.  Davis,  394 

SETTLEMENT. 

A  service,  under  an  instrument  to 
•which  there  was  affixed  no  seal  of  wax 
or  wafer,  but  only  a  scroll  or  scribble, 
by  way  of  seal,  is  not  such  a  serving 
of  an  apprenticeship,  under  indenture, 
aa  will  gain  a  settlement  under  the  act 
for  the  settlement  and  relief  of  the  poor 
Overseers  of  Hopewell  v.  Overseers  of 
Amwell,  169 

SHERIFF. 

1.  Two  sheriffs  cannot,  by  law,  ad- 
vertise and  sell,  and  convey  the  prop- 
erty of  defendants  jointly.     Maffit  ads. 
Tonkins,  228 

2.  Query.    Whether  their  joint  deed 

iteb 


is  absolutely  void  ? 


ib. 


3.  Where  the  plaintiffs,  having  a 
mortgage  on  lands  of  the  defendant  for 
the  sum  of  $1000,  obtain  judgment  on 
their  bond,  and  execution  is  issued  in 
the  hands  of  the  sheriff;  if  the  sheriff, 
by  virtue  of  this  execution,  levies  on 
the  mortgaged  premises,  but  is  prevent- 
ed from  advertising  them  by  a  letter 
from  the  plaintiffs,  and  these  premises 
are  afterwards  sold  by  virtue  of  prior 
executions,  and  are  purchased  by  the 
plaintiffs  for  six  cents  an  acre  more  than 
the  amount  of  their  mortgage,  the  sheriff 
is  not  entitled  to  centage  on  the  whole 
amount  of  the  $4000,  but  only  upon 
the  amount  which  the  property  brought 
over  and  above  the  amount  of  the  mort- 
gage. Black  v.  Ely,  232 


SLAVES. 

1.  Indians  may  be  slaves  under  the 
laws   of    New   Jersey.     State  v.  Van 

Waggoner,  374 

2.  What  shall  be  considered  aa  suffi- 
cient proof  of  slavery.  ib. 


STATUTES    CONSTRUED,    EX- 
PLAINED, OR  CITED. 

1.  Under  the  act  of  the  25th  of  Feb- 
ruary, 1821,  entitled,  "A  further  sup- 
plement to  the  act  entitled  an  act  to 
preserve  and  support  the  jurisdiction  of 
the  state,"  a  citizen  of  this  state  who 
has  been  restrained  by  an  injunction 
out  of  the  Court  of  Chancery  of  New 
York,  from  navigating,  with  Iris  steam- 
boat, the  waters  between  the  ancient 
shores  of  the  states  of  New  Jersey  and 
New  York,  may  recover  damages,  with 
triple  costs,  against  the  person  so  re- 
straining   him.      Gibbons  v.   Living- 
ston, 236 

2.  Although  the  enjoining  and  re- 
straining was  by  virtue  of  an  injunc- 
tion sued  out  and  served  before  the 
passing  of  the  act ;  and  although  the 
defendant  did  no  act  or  thing,  after  the 
passing  of  the  act,  to  enforce  the  injunc- 
tion, yet,  his  suffering  it  to  remain  in 
force  after  the  passing  of  the  act,  and 
not  dissolving  it,  was  such  a  restraining 
and  enjoining  as  to  bring  him  within 
the  words  of  the  act.  ib. 

3.  Though  this  court  is  of  opinion, 
that  the  act  of  25th  February,  1821,  is 
unconstitutional,  so  far  as  it  makes  a 
person  liable  for  transactions  done  in 
the  state  of  New  York,  under  the  lex 
fort  of  that  state,  yet,  inasmuch  as  a 
court  of  co-ordinate  jurisdiction  has  so 
far  adjudged  this  law  constitutional  as 
to  carry  it  into  effect,  and  inasmuch  aa 
it  is  of  importance  that  the  administra- 
tion of  justice  should  be  uniform  in  thia 
state,  this  court  is  induced  to  yield  ita 
own  opinion   and  to  say,  that  the  de- 
murrer should  be  overruled.     Gibbons 
v.  Ogden,  284 

See  DEMURRER,  1. 

1795.  March  2.  Sec.  8.  (Executors 
and  administrators,  or  the  distribution 
of  intestates'  estates.)  195 

1798.  March  8.  Sec.  15.  (For  re- 
lief of  creditors  against  absconding 
debtors.)  179 

1794.  December  2.  Sec.  4.  (Refer- 
ences and  arbitrations.)  388 

1788.  November  29.  (Bank  mead- 
ows.) 132 


INDEX. 


XXXI 


1797.  March  9.  (Habeas  corpus.) 
This  act  repealed.  381 

1799.  February  7.  Sec.  1.  (Limi- 
tation of  actions  )  187,  377 

1810.  November  2.  (To  tax  bank 
stock )  100 

1817.  January  29.  (Fraudulent  con- 
fession of  judgments.)  300 

1821.  November  23.  Sec.  6.  (Sup- 
plement to  act  for  trial  of  small 
causes.)  160 

STATE  OF  CASE. 
See  COURT  OF  QUARTER  SESSIONS. 

STATE  OF  DEMAND. 

1.  A  state  of  demand  in  trespass  for 
breaking  plaintiff's  close,  and  taking 
away  his  grain,  grass,  hay,  &c.  without 
alleging  the  quantity  and  value  of  each 
article,   is    sufficient.      Van    Dyk    v. 
Dodd,  129 

2.  Sufficiency  of  state  of  demand  to 
recover  under  the  18th  section  of  the 
statute  of  29th  November,  1788,  (Pat. 
88)  relative  to  bank  meadows.     West- 
cott  v.  Garrison  and  Danzenbaker,  132 

3.  In  an  action  for  a  malicious  prose- 
cution, unless  the  state  of  demand  sets 
out  an  arrest  or  special  grievance,  the 
judgment  will  be  reversed.     Algor  v. 
Stittwell,  166 

4.  In  an  action  of  covenant,  it  must 
appear  upon  tjie  state  of  demand,  that 
the  instrument  upon  which  the  action 
is  founded  is  a  sealed  instrument.  Pier- 
son  v.  Pierson,  168 

5.  A  count  for  money  paid  to,  and 
for  the  use  of  defendant,  and  at  his  re- 
quest, to  A.  B.  is  good  in  justice's  court. 

Vanderveer  v.  M  Mackin,  213 

SUMMARY  PROCEEDINGS. 
See  CORPORATION,  3. 

SUMMONS. 

In  an  action  against  three,  the  return 
of  the  summons  must  shew  on  whom  it 


was  served,  and  on  whom  not ;  and 
such  return  cannot  be  dispensed  with, 
unless  all  the  defendants  appear.  Stults 
et  al.  v.  Ouica.lt,  130 

SUPERSEDEA3. 
See  CERTIORARI,  3. 

SUPREME  COURT. 

See  COURT  OF  QUARTER  SESSIONS,  2. 
COURT  OF  COMMON  PLEAS,  3. 
MANDAMUS,  2. 


TAX  WARRANT. 

Where  a  justice  of  the  peace  issues  an 
execution  or  tax  warrant,  for  fines  im- 
posed by  a  military  court  upon  persons 
neglecting  militia  duty,  without  having 
any  list  of  delinquents  returned  to  him, 
by  the  officer,  whose  duty  it  was  to 
make  such  return,  the  execution  or  tax 
warrant  will  be  set  aside.  The  Stale 
v.  Kirby,  113 

TAX. 
See  CORPORATION,  1,  2,  3. 

TENDER  AND  REFUSAL. 
See  PAYMENT,  2. 

TITLE  TO  LAND. 
See  COSTS,  2. 

TOWNSHIP. 

For  a  contract  made  by  the  overseers 
of  the  poor,  for  the  maintenance  of  a 
pauper,  the  inhabitants  of  the  township 
are  liable  in  their  corporate  capacity, 
and  not  the  overseers.  Township  of 
Saddle  River  v.  Coif  ax,  115 

TRANSITORY  ACTION. 
See  ACTION,  1. 

TRESPAS& 
See  DAMAGES,  1. 


XXXll 


INDEX. 


TROVER. 

Constable  has  not  such  a  possession 
of  the  goods  of  the  defendant,  upon  the 
delivery  of  the  execution,  as  will  enable 
him  to  maintain  trover  for  them.  He 
can  only  acquire  such  possession  by 
making  an  inventory  01  them.  Win- 
termute  v.  Hankinton,  140 

See  WITNESS,  1. 

TRANSCRIPT  OF  JUSTICE'S 
DOCKET. 

1.  Not  evidence,  to  prove  the  delivery 
of  execution   to   constable.      Hunt  v. 
Boy  Ian,  211 

2.  The  Court  of  Common  Pleas  may 
at  the  third  term  after  filing  the  appeal, 
permit  the  transcript  of  the  justice  to 
be  amended,  by  affixing  a  seal  thereto, 
provided  no  delay  is  occasioned  there- 
by.    Thompson  v.  Sutton,  220 

3.  It  is  necessary  that  it  should  ap- 
pear, upon  the  transcript  of  the  justice's 
docket,  that  the  affidavit  required  by 
the  6th  section  of  the  supplement  to 
the  small  cause  act,  passed  November 
23d,  1821,  was  made  and  filed  with  the 
justice  at  the  time  of  filing  the  appeal 
bond.     Anon.  230 


V 

VENIRE. 

Venire  must  be  sealed  or  verdict  is 
bad.  Howdl  v.  Robinson,  142 

VERDICT. 

1.  A  verdict  is  never  set  aside  for  a 
juror's  misbehaviour  towards  the  court, 
unless  it  is  prejudicial  to  one  or  other 
of  the  parties.  Crane  v.  Sayre,  110 
Board  v.  Oronk,  119 

See  JUDGMENT,  I.,  1. 
VENIRE. 

VOID  LAW. 

All  proceedings  under  the  authority 
of  a  void  by-law,  imposing  a  tax,  are 
themselves  void,  ana  such  law  is  no 


justification  of  the  acts  of  the  person 
who  undertakes  to  execute  it.  Bergen 
V.  Clarkson,  352 

VOLUNTARY  CONVEYANCE. 
See  CONVEY  AH  CE,  2,  3. 

W 

WARRANT. 

See  TAX  WARRANT. 

ORDER  FOR  DISTRESS  WARRANT, 
1. 

WARRANT  OF  ATTORNEY. 

See  BOND  WITH  WARRANT  OF  ATTOR- 
NEY. 

WILL. 

Harmanus  Counter,  the  testator,  had 
two  sons,  Henry  and  Peter,  and  five 
daughters,  fcarah,  Anna,  Susannah, 
Elizabeth,  and  one  was  deceased. 
Peter,  one  of  the  sons,  died  before  the 
date  of  the  testator's  will,  leaving  ten 
children,  who  were  living  at  the  time 
of  this  trial.  After  making  provision 
for  all  the  eurviving  children,  and 
having  given  alfo  the  plantation  on 
which  Peter  had  lived  in  his  lifetime, 
to  two  of  his  sons,  the  testator  makes 
the  following  bequest:  "Item.  It  is  my 
will,  that  ail  the  remainder  of  my 
moveable  estate  shall  be  equally  divi- 
ded, that  is  to  say  :  to  Henry  Counter, 
and  the  heirs  of  my  son  Peter  Counter, 
Amos  Roome,  Susannah  Berry,  Eliza- 
beth Dod,  and  Sarah  Counter."  The 
children  of  Peter  Counter  take  per  stir- 
pei.  and  not  per  capita.  Roome  et  al. 
v.  Counter,  111 

WITNESS. 

In  an  action  of  trover  for  a  pro- 
missory note,  the  maker  of  the  note 
is  a  good  witness  for  the  defendant. 
Woodruff  v.  Smith,  214 

WRIT  OF  ERROR. 

When  the  judges  refuse  to  allow  all 
the  evidence  that  has  been  given  in  a 
cause  to  be  inserted  in  a  bill  of  ex- 
ceptions, it  cannot  be  taken  advantage 
of  by  a  writ  of  error.  Budd  v.  Crea,  370 


A     001  167 


269 


